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THE  LAW  OF 


SURETYSHIP  AND  GUARANTY, 


AS 


ADMINISTERED    BY    COURTS    OF    COUNTRIES 

WHERE    THE    COMMON    LAW 

PREVAILS. 


BY 

GEORGE    W.    BRANDT, 

OF  THE  CHICAGO   BAR. 


CHICAGO : 
CALLAGHAN  &  COMPANY. 

1878. 


Entered  according  to  Act  of  Congress,  in  tlie  j-ear  eighteen  hundred  and 

seventy-eight,  by 

GEORGE  W.  BRANDT, 

In  the  ofiBce  of  the  Librarian  of  Congress,  at  Washington. 


T 


PREFACE. 


The  object  sought  in  tins  work  is  to  present  a  comprehensive 
view  of  the  law  of  Suretyship  and  Guaranty,  as  administered  hy 
courts  of  countries  where  the  common  law  prevails. 

To  that  end  all  the  reports  have  been  examined  by  the 
author,  and  the  points  decided  in  such  cases  as  related  to  sure- 
ties and  guarantors  have  been  carefully  noted. 

The  following  pages,  it  is  believed,  contain  references  to 
substantially  all  the  reported  cases  bearing  on  the  subject  treated 
of  herein. 

It  is  hoped  that  the  great  difficulty  of  arranging  into  a  con- 
venient form  for  reference  the  mass  of  material,  covering,  as  it 
does,  almost  every  phase  of  the  transactions  of  men  with  each 
other,  has  been  in  a  measure  overcome. 

GEORGE  W.  BRANDT. 

Chicago,  July,  1878. 


671409 


LIST  OF  CHAPTERS. 


CHAPTER  I. 
Of  the  Contkact, 1 

CHAPTER  II. 
Of  the  Statute  of  Feauds, 48 

CHAPTER  III. 
Of  the  Liability  of  the  Surety  ok  Guakantor  generally,     104 

CHAPTER  TV. 
Of  the  Liability  of  the  Surety  when  the  Principal  is 

discharged,  or  not  originally  bound,     .        .        .         171 

CHAPTER  Y. 
Of  Continuing  Guaranties, 182 

CHAPTER  YI. 

Of  cases  where  the  Surety  on  a  general  obligation  is 

liable  only  for  limited  time  or  act,       .        .         .         194 

CHAPTER   YII. 
Of  the  liability  of  Accommodation  Parties  to  negotia- 
ble instruments,  and  of  the  Blank  Indorsee  of  an- 
other's obligation,  ......         207 

CHAPTER  YIII. 

Of  the  ITotice  and  Demand  necessary  to  Charge  a  Guar-     221 

ANTOR, 

(v) 


vi  LIST    or    ClIAFfERS. 

CHAPTER  IX. 

Of  the  Rights  of  the  Surety  ok  Guarantor  against  the 

Principal, 252 

CHAPTER  X. 

Of  the  Rights  of  the  Surety  or  Guarantor  against  the 

Creditor  and  third  persons,         ....         283 

CHAPTER  XI. 
Of  the  Rights   of   Sureties  and  Guakantoes   between 

EACH  other — Contribution, 310 

CHAPTER  XII. 
Op  Subrogation, 350 

CHAPTER  XIII. 
Of  the   Dischakge   of  the   Surety   or   Guaeantoe   by 

Payment, 387 

CHAPTER  XIV. 

Of  the  Discharge  of  the  Surety  or  Guaeantoe  by  the 

giving  of  Time, 400 

CHAPTER   XV. 

Of  the  Discharge  of  the  Surety  oe  Guaeantoe  by  Al- 
teration of  the  Contract,      .....         445 

CHAPTER  XVI. 

Of  the  Discharge  of  the  Surety  oe  Guaeantoe  by  Mis- 

EEPEESENTATION,    C0NCE.^XMENT,    FeAUD,    oe   ISTON-COM- 
PLIANCE  WITH  THE  TEEMS  UPON  WHICH  HE  BECAME  BOUND,      468 

CHAPTER  XVII. 

Of  the  Disciiaege  of  the  Surety  oe  Guaeantoe  by  the 

Creditor  relinquishing  secueity  foe  the  debt,      .         498 


LIST   OF    CHAPTEKS.  Vll 

CHAPTER  XYIII. 

Of  the  Discharge  of  the  Surety  oe  Guarantor  by  the 

Creditor  negligently  losing  security  for  the  debt,     519 

CHAPTER  XIX. 
Of  Sureties  on  obligations  given  in  the  course  of  the 

administration  of  justice,      .         .        .        .        .        533 

CHAPTER  XX. 
Of  Bail, 557 

CHAPTER  XXI. 

Of  Sureties  on  Official  Bonds,  .        .        .        .        577 

CHAPTER  XXII. 

Of  Statutes  relating  to  Sureties  and  Gcjarantors,  641 

CHAPTER  XXIII. 
Of  Evidence, 651; 


TABLE  OF  CASES. 


THE  BRFKBENCES  ARE  TO   THE  SECTIOJfS,      THE  LETTER  V  FOLLOWS 
THE  NAME  OF  THE  PLAINTIFF. 


Section 
Abat,  Kuhn  v.  14  Maxtin  (La.)  2 

N.  S  168,  100 

Abbey  t".  Van  Campen,  1  Freem. 

Ch.  R.  (Miss.)  273,  196 

Abbott,   Salkeld  v.  Hayes  (Irish), 

676,  273 

Abbott,  Mariner's  Bank  v.  23  Me. 

280.  17, 305 

Abbott,  Bancroft  v.  3  Allen,  524,  194 
Abbott,  Fewlass  v.  28  Mich.  270,  108 
Abel  V.  Alexander,  45  Ind.  523,  298, 307 
Abercroinbie  t'.  Knox,  3  Ala.  728,  82 
Abeel  r.  Kadcliff,  13  Johns.  297,  66 
Abrams  v.  Pomeroy,  13  111.  133,  107 
Ackloy,  Gerber  r.  32  Wis.  233,  484 
Ackley.  Gerber  v.  37  Wis.  43,  484 

Adams,  Lovett  v.  3  Wend.  380,  350 
Adams  v.  McMillan,  7  Port.  (Ala.) 

73,  76 

Adams,  Roberts  v.  6  Port.  (Ala.) 

361,  254 

Adams  r.  Flanagan,  36  Vt.  400, 

226,  230 
Adams,   Thompson  r.  1  Freeman's 

Ch.  R.  (Miss.)  225,  233.  383 

Adams,  Lowrey  r.  22  Vt.  160, 

96,  174,  175 
Adams,  Jordan,  Admr.  v.  7  Ark. 

(2  Eng.)  348,  182 

Adams  v.  Logan.  27  Gratt.   (Va.) 

201,    •  319,  375,  380 

Adams,  Hewitt's  Admr.  v.  1  Pat- 
ten, Jr.,  and  Heath  (Va.)  34,         383 
Adams  v.  Roane,  7  Ark.  (2  Eng.) 

360,  505 

Adams,  Holyoke  v.  1  Hun  (N.  T.), 


Section 

223;  Id.  10  Bank.  Reg.  270;  Id. 

13  Bank.  Reg.  414;  Id.  59  New 

York,  233,  409 

Adams,  Commonwealth  v.  3  Bush. 

(Ky.)  41,  449 

Adams    v.    Hodgepeth,    5    Jones 

Law  (Nor.  Car.)  327,  438 

Adams  v.  McMillan,  7  Port.  (Ala.) 

73,  66 

Adams  v.  Jones,  12  Peters,  207, 

67,  157,  158 
Adams  v.  Bean,  12  Mass.  139,  73 

Adams,  Ware  v.  24  Me.  177,  9 

Adams  v.  Dansey,  6  Bing.  506,  46 

Adams,  Kennedy  v.  5  Harrington, 

(Del.)  160,  429 

Adams,  Brown  v.  1  Stew.  (Ala.)  51,  47 
Adams,  Deberry  r.  9  Yerg.  (Tenn.) 

52.  18 

Adams,  Langley  v.  40  Me.  125,  435 
Adams,  FuUam  v.  37  Vt.  391,  50,  55 
Adams  Bank  v.  Anthony,  18  Pick. 

238,  208 

Adamson,    Jackson  v.  7    Blackf. 

(Ind.)  597,  195 

Adcock  r.  Fleming,  2  Dev.  &  Bat. 

Law  (Nor.  Car.)  225,  53,  168 

Adger,   Bank  v.  2  Hill  Eq.  (So. 

Car.)  262,  269 

Adington,  AUen  v.  7  Wend.  9,  59 

Adkinson  v.  Barfield,    1    McCord 

(So.  Car.)  575,  50 

Adm'rs  of  Pond  v.  Warner,  2  Vt. 

:32,       ♦  190,  191 

Admr.  of  Evans,  Exr.  of  McCall  v. 

2  Brevai-d,  (So.  Car.)  3,  209 


(ix) 


TABLE   OF   CASES. 


Section 
Admr.  of  Wilson  v.  Green,  25  Vt. 

450,  201,  520 

Admire,  People  v.  39  111.,  251,  495 
iEtna  Insurance  Co.,  Byrne  v.  56 

111.  321,  82 

iEtna  Life  Ins.  Co.,  Hough  v.  57 

111.  318,  82,  260 

iEtna  Life  Ins.  Co.  v.  Mabbett,  18 

Wis.  667,  367 

Agawam  Woolen  Co.,  Jordan  v. 

106  Mass.  571,  394 

Agawam  Bank  r.  Strever,  16  Barb. 

(N.  Y.)  82,  143 

Agawam  Bank  v.  Sears,  4  Gray, 

95,  333 

Agee  V.  Steele,  8  Ala.  948,  315 

Agnew  V.  BeU,  4  Watts  (Pa.)  31,      220 

233 
Agnew  V.  Merritt,  10  Minn.  308, 

22,  328 
Agricultural   Bank  v.    Bisbop,  6 

Gray,  317,  305 

Aiken  v.  Cheeseborough,   1  Hill. 

Law  (So.  Car.)  172,  53 

Aiken  v.  Duren,  2  Nott  &  McCord, 

(So.  Car.)  370,  54 

Aiken,  Marshall  v.  25  Vt.  328,  27 

Aiken  v.  Peay,  5  Strob.  Law,  (So. 

Car.)  15,  248 

Aiken,  Mathews  v.  1  New  York, 

595,  260 

Aikenhead,  People  v.  5  Cal.  106,  464 
Allan  V.  Kenning,  9  Bing.  618,  132 
Allan  V.  Kenning,  2  Moore  &  Scott, 

768,  132 

Allaire  v.  Ouland,  2  Johns.  Cas. 

52.  46 

Albert  son    v.    McGee,    7    Yerg. 

(Tenn.)  106,  396 

Albee,  Sou'e  v.  31  Vt.  142,  58 

Albee  v.  The  People,  22  111.  533,  30 
Albany  City  Fire  Ins.  Co.  v.  Dev- 

endorf,  43  Barb.  (N.  Y.)  444,        317 
Albany  Dutch  Church  v.  Vedder, 

14  Wend.  165,  369 

Alcock,  Watson  v.  4DeGex,  Macn. 

&  Gor.  242,  ♦  388 

■  Alcock,  Watson  v.  1  Smale  &  Gif- 

fard,319,  388 


Section 
Alcock  V.  Hill,  4  Leigh  (Va.)  622,  298 
Alcorn  v.  The  Commonwealth,  66 

Pa.  St.  172,  207 

Alden,  State  v.  12  Ohio,  59,  295 

Aldridge  v.  Turner,  1  GiU  &  Johns. 

(Md.)  427,  6,  68 

Aldridge  v.  Harper,  10  Bingham, 

118,  416 

Aldricks  V.  Higgins,   16  Serg.  & 

Rawle,  212,  136 

Aldrich  V.  Ames,  9  Gray,  76,  46,  58 
Aldrich  V.  Chubb,  35  Mich.  .350,  84,  85 
Aldrich,  Miller  v.  31  Mich.  408,  218 
Allen  V.  Bennett,   3  Taunt.  169, 

66,  67,  75 
Allen  V.  Coffil.  42  111.  293,  154 

Allen  V.  Pike,  3  Cush.  238,  157, 159 
Allen,  Kay  v.  9  Pa.  St.  320,  159 

Allen  V.  Hubert,  49  Pa.  St.  259,  1 

Allen  V.  Pryor,  3  A.  K.  Marsh  (Ky.) 

305,  39,  53 

Allen  V.  Morgan,  5  Humph.  (Tenn.) 

624,  10 

Allen,  Corielle  v.  13  Iowa,  289,  17,  309 
Alien,  Bull  v.  19  Conn.  101,  17 

Allen,  Whitney  v.  21  Cal.  233,  403 
Allen,  State  v.  2  Humph.  (Tenn.) 

258,  431 

Allen  V.  Ayers,  3  Pick.  298,  95 

Allen,  Wadsworth  v.  8  Gratt.  (Va.) 

174,  97,  165,  174 

Allen,  Smith  v.  Saxton  (N.  J.)  43,  118 
Allen,  Stanford  v.  1  Cush.  473,  83 

Allen,  Nichols  v.  22  Minn.  283,  53,  85 
AUen  I'.  Thompson,  10  New  Hamp. 

32,  51 

Allen  V.  Adington,  7  Wend.  9,  59 

Allen,  Bushee  v.  31  Vt.  631,  62 

Allen  V.  ScarfF,  1  Hilton  (N.Y.)  209,     62 ' 
Allen  V.  Culver,  3  Denio,  284,    34,  286 
Allen  V.  Wood,  3  Ired.  Eq.  (Nor. 

Car.)  386,  254 

Allen  V.  Morgan,  5  Humph.  (Tenn.) 

624,  •       217 

Allen  V.  Jones,  8  Minn.  202,  286 

Allen,  GifFord  v.  8  Met.   (Mass.) 

255,  301 

Allen  V.  Breslauer,  8  Cal.  552,  437 

Allen,  Snell  v.  1  Swan  (Tenn.)  208,  521 


TABLE    OF   CASES. 


XI 


Section 
Allen  V.  Ramey,  4  Strob.  Law  (So. 

Car.)  30,  454 

Alley,  Egerton  v.  6  Ired.  Eq,  (Nor. 

Car.)  188,  204 

Alleghany  City,  Moore  v.  18  Pa. 

St.  55,  447 

Alexander,   Towler  v.   1  Heiskell 

(Tenn.)425,  18 

Alexander  v.  Bates  33  Ga.  125,  434 
Alexander,  Parker  v.  2  La.  An. 

188,  391 

Alexander,  Hamar  v.  5  Bos.  &  Pul. 

241,  59 

Alexander,  Abel  v.  45  Ind.  523, 

298,  307 
Alexander  v.  Bank  of  Common- 
wealth, 7  J.  J.  Marsh,  (Ky.)580,  378 
Alexander  v.  Mercer,  7  Ga.  549,  465 
Allison  r.  Thomas,  29  La.  An.  732,  296 
Alf'ord  V.  Irwin,  34  Ga.  25,  430 

Algar,  Jarman  v.  2  Car.  &  P.  249,  56 
Alger  V.  Scoville.  1  Gray,  391,  50,  58 
Allison  V.  Rutledge,  5  Yerg.  (Tenn.) 

193,  97 

Allison  V.  State,  8  Heisk.  (Tcnn.) 

312,  145 

Allison  V.  Thomas,  29  La.  An.  732,  27 
Allison,  Shaver  v.  11  Grant's  Ch. 

R.  355,  ,345 

Allison  V.  Sutherlin,  50  Mo.  274,  266 
Allis,  Northwestern  Mut.  Life  Ins. 

Co.  V.  23,  Minn.  82 

AUmen,  Stevens  v.  19  Ohio  St.  485, 

461 
Allnutt  V.  Ashenden,  6  Scott,  N.  R. 

127,  71 

Allnutt  V.  Ashenden,  5  Man.  &  Gr. 

392,  71,  72,  137 

AUshouse  v.  Ramsay,  6  Wharton, 

(Pa.)  331,  48 

AUsbury,  United  States  v.  4  Wal- 
lace, 186,  106 
Alsop  V.  Price,  1  Douglass  (Eug.) 

160,  126 

Ames,  Josselyn  v.  3  Mass.  274,  153 
Ames,  Alddch  v.  9  Gray  76,  46,  58 

Ames,  Maggs  t\  4  Bing.  470,  48 

Ament,  Perkins  v.  2  Head  (Tenn.) 

110,  94 


Section 
American  Bank  v.  Baker,  4  Met. 

(Mass.)  164,  345,  370 

Amherst    Bank    v.  Root,  2  Met. 

(Mass.)  522,  144,  369,  474,  479,  519 
Amicable  Mutual  Life  Ins.  Co.  v. 

Sedgwick,  110  Mass.  163,  341,  344 
Amis,  Armor  v.  4  La.  An.  192,  370 
Ammons  v.  Whitehead,  31  Miss. 

99,  400 

Ammons  r.  People,  11  111.  6,  462 

Ammidon,  Towne  v.  20  Pick.  535,  117 
Amonett,  McKee  v.  6  La.  An.  207,  272 
Ancion  v.  Guillot,  10  La.  An.  124,  12 
Anderson,  Decker  v.   39  Barb.  (N. 

Y.)  346,  420 

Anderson  v.  Eyman,  1  H.  Black. 

120,  64 

Anderson  v.  Harold,  10  Ohio,  399,  75 
Anderson,  Low  v.  41  loa.  476,  4 

Andrews  v.  Jones,  10  Ala.  400,  38 

Anderson,  Knapp  v.  7  Hun,  (N.  Y.) 

295,  409 

Anderson,  Nelson  v.  2  CaU,  (Va.) 

286,  402 

Anderson  v.   Sloan,    1    Colorado, 

484,  404 

Anderson  v.    Blakely,  2  Watts  & 

Serg.  (Pa.)  237,  137 

Anderson,   Hodgson  v.   5  Dow  & 

Ry.  735,  52,  735 

Anderson,  Hodgson  v.  3  Bam.   & 

Cress.  842,  52,  53 

Anderson  v.  Hayman,  1  H.  Black. 

120,  62 

Anderson  v.  Chick,  Bailey  Ch.  (So. 

Car.)  118,  76 

Anderson,  CaiTJngton  v,  5  Munf. 

(Va.)  32,  76 

Anderson  v.  Pearson,  2  Bailey  Law 

(So.  Car.)  107,  226 

Anderson,  Smith's  Exrs.  v.  18  Md. 

520,  227 

Anderson  v.  Walton,'  35  Ga.  202,  193 
Anderson,    Tankersely  v.   4  Des. 

Eq.  (So.  Car.)  44,  190 

Anderson  v.  Mannon,  7  B.    Mon. 

(Ky.)  217,  309 

Anderson  v.  Longden,  1  Wheaton, 

85,  459 


TABLE   OF   CASES. 


Section 
Andrews  v.  Marrett,  58  Me.  539,  316 
Andrews,  Crawford  v.  6  Ga.  244,  485 
Andrews  v.  Smith,  Tyrwh.  &  Gr. 

173,  49 

Andrews  v.  Smith,  2  Cromp.  Mees. 

&  Ros.  627,  49 

Andrews  v.  Varrell,  46  New  Hamp. 

17,  203 

Andrews,  Spalding  v.  48  Pa.  St. 

411,  63 

Andrus  v.  Chretien,  7  La.  0.  S. 

(4  Curry)  318,  36 

Andrus,  Mercien  v.  10  Wend.  461,  50 
Andrus  v.  Bealls,  9  Cowen,  693,  489 
Andre  v.  Fitzhugh,  18  Mich.  93,  407 
Andre  v.  Bodman,  13  Md.  241,  48 

Angney,   Cole  County  v.  12  Mo. 

132,  105 

Annable,  Russell  v.  109  Mass.  72,  127 
Annett  v.  Terry,  35  New  York, 

256,  532 

Anniss,  Brickwood  v.  5  Taunt.  614,  425 
Anon.,  Brookes'  New  Cas.  172,  345 
Anon.,  Godbolt,  149,  196 

Anthony,  Smith  v.  5  Mo.  504.  162 

Anthony  v.   PercLfull,   8  Ark.   (3 

Eng.)  494,  238,  249 

Anthony,  Adams  Bank  v.  18  Pick. 

238.  208 

Antrim,  Hatch  v.  51  111.  106,  87 

Antrobus  v.  Davidson,  3  Merivale, 

569,  192,  205 

Anstey  v.  Mardeu,  1  Bos.  &  Pul.  N. 

R.  124,  51 

Ansley,  Carlos  v.  8  Ala.  900,  195 

Anspa.ch,  Webb  v.  3  Ohio  St.  522,  457 
Archibald,  SievewrightT.  17  Ad.  & 

Ell.  (N.  S.)  103,  66 

Archer,  Gosbell  v.  2  Adol.  &  Ell. 

500,  •  75,  76 

Archer  v.  Hale,  4  Bingham,  464,  416 
Archer  r.  Hale,  1  Moore  &  Payne, 

285,  416 

Archer's  Exr.,  United  States  v.  1 

Wallace  Jr.  173,  117 

Archer  v.  Hudson,  7  Beavan,  551,  345 
.  Archer,   Buckner  v.  1    McMuUen 

Law  (So.  Car.)  85,  532 

Ardem  v.  Rowney,  5  Esp.  254,  53 


Section 
Ardery's     Admr.,      Henderson's 

Admr.  V.  30  Pa.  St.  449,  296 

Arents  v.  Commonwealth,  18Gratt. 

(Va.)750,  _    34,86 

Armstrong,    Hawes    v.     1    Bing. 

(N.  C.)  761,  68,  70,  71 

Armstrong,  Newbury  v.  6    Bing. 

201,  70 

Armstrong,  Newbury  v.  3  Moore  & 

Payne,  509,  70 

Armstrong,  Newbury  v.  Moody  & 

Malkin,  389,  70 

Armstrong,  Hawes  v.  1  Scott,  661,  71 
Armstrong,  Lewis  v.  47  Ga.  289,  395 
Armstrong,  Perry  v.  39  New  Hamp. 

583,  94 

Armstrong,  Corporation  of  Huron 

V.  27  Up.  Can.  Q.  B.  R.  533,  349 
Armstrong  v.  Cook,  30  Ind.  22,  348 
Armstrong  v.  State,  7  Blackf.  (Ind.) 

81,  462 

Armstrong  v.   United  States,   Pe- 
ters' Cir.  Ct.  R.  46,  443 
Armstrong,  Harshman  v.  43  Ind. 

126,  226 

Armstrong,  Hodges  v.  3  Dev.  Law 

(Nor.  Car.)  253,  194 

Armstrong's  Appeal,  5  Watts  & 

Serg.  (Pa.)  352,  268 

Armstrong,  Perry  v.  39  New  Hamp. 

583,  313 

Armstead  v.  Thomas,  9  Ala.  586,  303 
Armington  v.  State,  45  Ind.  10,  452 
Armistead  v.  Ward,  2  Patton,  Jr. 

&  Heath,  (Va.)  504,  309,  317 

Armitage  v.  Pulver,  37  New  York, 

494,  252 

Armor  v.  Amis,  4  La.  An.  192,  370 
Armor,  Craddock  v.  10  Watts  (Pa.) 

258,  115 

Arms  V.  Ashley,  4  Pick.  71,  72 

Arnot  V.  Erie  R.  R.  Co.  5  Hun.  608,  3 
Arnot  V.  Erie  R.  R.  Co.,  67  New 

York,  315,  89 

Arnold,    Quillen    v.    12    Nevada, 

234,  407 

Arnold  v.  Stedman,  45  Pa.  St.  186,  50 
Arnold,  Smith  v.  5  Mason  (C.  C.) 

414,  76 


TABLE   OF  CASES. 


Xlll 


Section 
Arnold  v.  Hicks,  3  Ired.  Eq.  (Nor. 

Car.)  17,  204 

Arnold,    Cummings    v.    3    Met. 

(Mass.)  486.  67 

Appleton     V.     Bascom,    3     Met. 

(Mass.)  160,  179 

Appleton  V.  Parker,  15  Gray,  173,  317 
Applegate,  Uhler  v.  26  Pa.  St.  140, 

306,  308 
Apperson  v.  Cross,  5  Heisk.  (Tenn.) 

481,  296 

Apgar's  Adm'r  v.   Hiler,   4  Zab. 

(N.  J.)  812,  46,  178,  187,  198 

Af  tcher  v.  Douglass,  5  Denio,  509,  127 
Arrington,   Choate  v.    116  Mass. 

552,  449 

Arrington  v.  Porter,  47  Ala.  714,  524 
Ashford  v.  Bobinson,  8  Ired.  114,  68 
Ashford  v.  Robinson,  8  Ired.  Law 

(Nor.  Car.)  114,  119 

Ashenden,  Allnutt  v.   5  Man.  & 

Gr.  392,  71,  72,  137 

Ashenden,  Allnutt  v.  6  Scott  N. 

R.  127,  71 

Ashley,  Arms  v.  4  Pick.  71,  72 

Ashley,  Killian  v.  24  Ark.  511, 

33,  147, 163 
Ashby  V.  Johnston,  23  Ark.  163,  392 
Ashby  V.  Tureman,  3  Littell  (Ky.) 

6,  412 

Ashby  V.  Sharp,  1  Littell  (Ky.)  156,  394 
Ashby 's  Admx.  v.  Smith's  Exr.  9 

Leigh  (Va.)  164,  381 

Ashford  v.  Robinson,  8  Ired.  Law 

(Nor.  Car.)  114,  53,  84 

Ashton  V.  Bayard,  71  Pa.  St.  139,  9,  86 
Ashton,    Stout  v.  5  T.   B.  Mon. 

(Ky.)  251,  208 

Ashurst  V.  Ashurst,  13  Ala.  781,  518 
Ashdown,    "West   v.   1   Bingham, 

164,  425 

Asians  v.  Commonwealth,  1  Duvall 

(Ky.)  275,  432 

Aspinall,  Ogden  v.  7  Dow.  &  Ry- 

land,  637,  103 

Assurance  Co.,  Benham  v.  7  Wels. 

Hurl.  &  Gor.  744,  351 

Astling,  PhiHps  v.  2  Taunt.  206, 

172,  345 


Section 
Aston,  Sanderson  v.  Law  Rep.  8 

Exch.  73,  347,  368 

Athol  Machine  Co.  v.  Puller,  107 

Mass.  437,  4 

Atherton,  State  v.  40  Mo.  209,  367,  369 
Atkinson,  Grayson  v.  2  Ves.   Sr. 

454,  75 

Atkinson,  Company  of  Proprietors 

of  the  Liverpool  "Waterworks  v. 

6  East,  507,  138 

Atkinson  v.  Stewart,  2  B.  Mon. 

(Ky.)  348.  255 

Atkinson,  Semple  v,  64  Mo.  504,      317 
Atkins  V.  Baily,  9  Yerg.  (Term.) 

Ill,  530 

Atlas  Bank  v.  BrowneU,  9  Rhode 

Isl.  168,  366,  368,  519 

Atlantic  and  Pacific  Telegi-aph  Co. 

V.  Barnes,  64  New  York,  385,       363 
Atlantic  &  N.  C.   R.  R.   Co.  v. 

Cowles,  69  Nor.  Car.  59,  477 

Atlanta  National  Bank  v.  Doug- 
lass, 51  Ga.  205.  338 
Atwood  V.  Cobb,  16  Pick.  227,  67 
Atlee,  Voorhies  v.  29  Iowa,  49,           85 
Atwell's     Admr.     v.     Towles,    1 

Munf.  (Va.)  175,  115 

Atwood,    Danker    v.    119    Mass., 

146,  15 

Aubert,  Castling  v.  2  East,  325,        40, 

51,56 
Aud  V.  Magnider,    10   Cal.,  282, 

17,  148 
Auditor,  Bennett  v.  2  "West,  Va. 

441,  324 

Augero  v.  Keen,  1  Mees.  &  "Wels. 

390,  144 

Ault,  White  v.  19  Ga.  551,  21 

Austen  v.  Baker,  12  Modern,  250,      63 
Austin    V.    Richtirdson,    1    Gratt. 

(Va.)  310,  15 

Austin,  Mellendy  v.  69  111.  15,  291 

Austin,  Spaulding  v.  2  Vt.  555,         185 
Austin, Wright  v.  56,  Barb.  (N.  Y.) 

13,  292 

Austin  V.  Dorwin,  21  Vt.  38,     301,  306 

309 
Austin  V.  Curtis,  31  Vt.  64,  319 

Aycock  V.  Leitner,  29  Ga.  197,  437 


XIV 


TABLE    OF    CASES. 


Section 
Ayles-wortli,  Enos  v.   8  Ohio    St. 

'32-2,  437 

Ayer,  Browii  v.  24  Ga.  288,        27,  121 
Ayers,  Allen  v.  3  Pick.  298,  95 

Ayres,  Clinton  Bank  v.   16  Ohio, 

283,  95 

Ayres,  Robbins  v.  10  Md.  528,  52 

Ayres  v.  Milory,  53  Mo.  516,  354 


Babcock  v.  Hubbard,  2  Ct.  536,  178 
Babcock  v.  Bryant,  12  Pick.  133,  163 
Babcock,  In  re  3  Story,  393,  205 

Baby  v.  Baby,  8  Up.  Can.  Q.  B.  R. 

76,  82,  471 

Bacon,  Williams  v.  2  Gray,  387,  66,  76 
Bacon  v.  Chesney,  1  Starkie,  192,  361 
Bacon,  Miles  v.  4  J.  J.  Marsh  (Ky.) 

457,  182 

Bacon,  Harvey  v.  9  Yerg.  (Tenn.) 

308,  903 

Bacot,  Doughty  v.  2  Desaussure, 

Eq.  (So.  Car.)  546,  20 

Bachelder  v.  Fiske,  17  Mass.  464, 

238,  248 
Backhouse  v.  Hall,  6  Best  v.  Smith, 

507,  98 

Backus  V.  Shipherd,  11  Wend.  629,  85 
Backus,  Irwin  v.  25  Cal.  214,  532 

Badger     v.    Barnabee,      17    New 

Hamp.  120,  9 

Badgley,  Ex  parte  7  Cowen,  472,  438 
Bagley  v.  Clark,  7  Bosw.   (N.  Y.) 

94,  341 

Bagwell,  Miller  v.  3  McCord,  Law 

(So.  Car.) 429,  32 

Bagott  i'.  Mullen,  32  Ind.  332,  229 

Bagot  V.  State,  33  Ind.  262,  522 

Bagg,  Palmer  v.  56   New  York, 

523,  100 

Bailey,  Clason  v.  14  Johns.  484,  66,  75 
Bailey  v.  Ogden,  3  Johns.  399,  67,  75 
Bailey  v.  Freeman,  11  Johns.  221,  73 
Bailey,  Rapelye  v.  3  Ct.  438,  161 

Bailey  r.  Croft,  4  Taunt.  611,  7 

Bailey  v.  Freeman,  4  Johns.  250,  6 
Bailey,  Higdon  v.  26  Ga.  426,  17 

Bailey,  Scott  v.  23  Mo.  140,  18 

Bailey  v.  Rosenthal,  56  Mo.  385,      400 


Section 
Bailey  V.  Seals,  1  Harrington  (Del.) 

367,  429 

Bailey,  Coleman  v.  4  Bibb.  (Ky.) 

297,  76 

Bailey  v.  Hicks,  16  Tex.  229,  182 

Bailey  v.  Edwards,  4  Best  &  Smith, 

761,  328 

Bailey,  Higdon  v.  26  Ga.  426,  374 

Bailey,  Dinkins  v.  23  Miss.  284,  272 
Bailey,  Rapelye  v.  5  Ct.  149,  134 

Bailey  v.  Larehar,  5  Rhode  Is.  530,  78 
Bailey,  Clore  v.  6  Bush  (Ky.)  77,  478 
Bailey  v.  New,  29  Ga.  214,  209,  508 
Baily,  A+kins  v.  9  Yerg.  (Tenn.) 

Ill,  530 

Baird  v.  Rice,  1  Call,  (Va.)  18,  378 
Baird,  Cowan  v.  77  Nor.  Car.  201,  349 
Baird,  Webb  v.  27  Ind.  368,  355 

Bainton,  Mayberry  v.   2  Harring- 
ton (Del.)  24,  10,  169 
Bainbridge  v.  Wade,  16  Ad.  &  Ell. 

N.  S.  89,  68,  70,  72 

Bainbridge,    Smith  v.    6    Blackf. 

(Ind.)  12,  169 

Bailie,  Walsh  v.  10  Johns.  180,  97 
Baker,  Austen  v.  12  Modern,  250,  63 
Baker,  Palmer,  v.  23  Up.  Can.  C. 

P.  R.  302,  67 

Baker  v.  Cornwall,  4  Cal.  15,  68 

Baker  v.  Deriug,  8  Adol.  &  Ell. 

94,  75 

Baker    v.    Briggs,    8    Pick,    122, 

48,  151,  153,  209,  211,  370 
Baker  v.  Morrison,  4  La.  An.  372,  12 
Baker,  Kerr  v.  Walker  (Miss.)  140,  17 
Baker,  Currier  v.  51  New  Hamp. 

613,  245 

Baker,  American  Bank  v.  4  Met. 

(Mass.)  164,  345,  370 

Baker,  State  v.  64  Mo.  167,  358 

Baker,  Campbell  v.  46  Pa.  St.  243, 

86,  297 
Baker  v.  Rand,  13  Barb.  (N.  Y.) 

152,  137 

Baker  v.  Kennett,  54  Mo.  82,  128 

Baker,  Riddle  v.  13  Cal.  295,  91 

Baker  r.  Kellogg,  29  Ohio  St.  663,  503 
Baker  v.  Preston,  1  Gilmer  (Va.) 

235,  622 


TABLE   OF   OASES. 


XV 


Section 
Baker,  King  v.  7  La.  An.  570,  448 

Baker,  Hammock  v.  3  Bush.  (Ky.) 

208,  421 

Baldwin,  Payne  v.  14  Barb.  (N.  Y.) 

570,  63 

Baltimore  &  Ohio  R.  R.  Co.,  Straw- 
bridge  V.  14  Ind.  360,  343 
Balcombe,  Kingsley  v.  4  Barb.  (N. 

Y.)  131,  47,  55 

Baldwin,  Metzner  v.  11  Minn.  150,     18 
Baldwin,  Lartigue  v.  5  Martin  0. 

S.  (La.)  193,  12,  524 

Baldwin,  Lee  v.  10  Ga.  208,  384 

Baldwin,  Preble  v.  6  Cush.  549,         58 
Baldwin,  Derry  Bank  v.  41  New 

Hamp.  434,  28 

Baldwin,  King  v.  2  Johns.  Ch.  R. 

554,  205, 206 

Baldwin,  King  v.  17  Johns,   384, 

206,  210 
Baldwin    v.  Gordon,   12    Martin, 

(La.)  0.  S.  378,  121,  206 

Baldwin  v.  Western  Reserve  Bank, 

5  Ohio,  273,  299 

Baldwin,  University  of  Cambridge, 

V.  5  Mees.  &  Wels.  580,  99 

Ballard  v.  Brummitt,  4  Strobh.  Eq. 

(So.  Car.)  171,  493 

Ballard,  Russell  v.  16  B.  Mon.  (Ky.) 

201,  95 

Ballard,  Cross  r.  46  Vt.  415,    *         115 
Ballard,  Daniel  v.  2  Dana,   (Ky.) 

296,  229,  254 

Ball,  Wild  Cat  Branch  v.  45  Ind.  213, 357 
Ball  V.  Gilson,  7  Upper  Can.  C.  P. 

R.  531,  17 

Ball,  Stamford,  &c.,  Banking  Co. 

4  DeGex,  Fish,  and  J.  22 

Bales  r.  State,  15  Ind.  321,  466 

Bampton  v.  Paulin,  4  Bing.  264, 

49,  51,  54 
Bamford  v.  lies,  3  Wels.  Hurl.  & 

Gor.  380,  142 

Bank  of  the  Old  Dominion,    Mc- 
Veigh V.  26  Gratt  (Va.)  785,         381 
Bank  of  Kingston,  Chester  v.  16 

New  York,  336,  293 

Bank  of  Mobile,  CuiTy  v.  8  Port. 

(Ala.)  360,  333 


Section 
Bank  of  Lansingburgh,  Nevins  v. 

10  Mich.  547,  67 
Bank  of  Orleans  v.  Barry,  1  Denio, 

116,  155 

Bank  of  Illinois  v.   Sloo,  16  La. 

(CuiTy)  539,  157 

Bank  of  St.  Albans  v.  Smith,  30  Vt. 

148,  17,  89 

Bank  of  Brighton  v.  Smith.  5  Allen, 

413,  13 

Bank  of  Penn  Township,  McMul- 

Un  V.  2  Pa.  St.  343,      '  189 

Bank  of  Missouri  v.  Matson,  26 

Mo.  243,  19 

Bank  of  Upper  Canada  v.  Thomas, 

11  Up.  Can.  C.  P.  R.  515,  19 
Bank  of  Albion  v.  Burns,  46  New 

York,  170,  22 

Bank  of  Whitehaven,  Dawson  v. 

Law  Rep;  4  Ch.  Div.  639,  22 

Bank  at  Decati*r  v.  Johnson,  9  Ala. 

621,  391 

Bank  of  Gettysburg  v.  Thompson, 

3  Grant's  Cases  (Pa.)  114,  386 

Bank  of   Pennsylvania,  Manufac- 
turers' and  Mechanics'  Bank,  v.  7 

Watts  &  Serg.  335,  27 

Bank  of  Mount  Pleasant,  Spriggi;. 

10  Peters  (U.  S.)  2-37,  28 

Bank   of  Burlington  v.  Beach,  1 

Aiken  (Vt.)  62,  94 

Bank  of  Com.  v.  McChord,  4  Dana 

(Ky.)  191,  331 

Bank  of  Limestone  v.  Penick,  5  T. 

B.  Mon.  (Ky.)  25,  332 

Bank  of  Limestone  v.  Penick,  2  T. 

B.  Mon.  (Ky.)  98,  332 

Bank  of  Orleans,  Boughton  v.  2 

Barb.  Ch.  R.  458,  244 

Bank  of  Rutland,  West  v.  19  Vt. 

403,  178 

Bank  of  Alabama  v.  M'Dade,   4 

Port.  (Ala.)  252,  188 

Bank  of  Scotland,  Smith  v.  1  Dow 

272,  367 

Bank  of  America,   Kirkman  v.  2 

.  Cold.  (Tenn.)  397,  214 

Bank  of  Toronto  v.  Wilmot,  19  Up. 

Can.  Q.  B.  R.  73,  341 


XVI 


TABLE   OF   CASES. 


Section 

Bank  of  Upper  Canada  v.  Covert, 
5  Up.  Can.  K.  B.  R.  (0.  S.)  541,  342 

Bank  of  Washington  v.  Barring- 
ton,  2  Pen.  &  Watts  (Pa.)  27,      344 

Bank  of  U.  S.  McGill  v.  12  Whea- 
ton, 511,  344 

Bank  of  U.  S.  v.  Magill,  1  Paine, 
661,  344 

Bank  of  Lansingburg,  Ives  v.  12 
Micb.  361,  370 

Bank  of  Kingston,  Chester  v.  16 
New  York,  336,  372 

Bank  at  Mobile,  Hetherington  v. 
14  Ala.  68,  382 

Bank  of  Missouri  v.  Matson,  24 
Mo.  333,  381 

Bank  of  Commonwealth,  Alexan- 
der V.  7  J.  J.  Marsh.  (Ky.)  580,    378 

Bank  of  Steubenville  v.  Leavitt,  5 
Ohio,  208,  325 

Bank  of  Montreal,  Curojping  v.  15 
Grant's  Ch.  R.  686,  312 

Bank  of  Mobile,  Ige  v.  8  Port. 
(Ala.)  108,  313 

Bank  of  Pennsylvania  v.  Potius,  10 
Watts  (Pa.)  148,  320 

Bank  of  Kentucky,  Pendleton  v.  1 
T.  B.  Mon.  (Ky.)  171,  319 

Bank  of  Middlebury  v.  Bingham, 
33Vt.  621,  304 

Bank  of  Wilmington  &  Brandy- 
wine,  McDowell  V.  2  Del.  Ch.  R. 
1,  296 

Bank  of  Orleans,  Wilson  v.  9  Ala. 
847,  303 

Bank  of  Albion  v.  Burns,  46  New 
York,  170,  296 

Bank  of  Bengal  v.  Radakissen 
Mitter,  4  Moore's  Privy  Council 
Cas.  140,  286 

Bank  of  Cumberland,  Hopewell  v. 
10  Leigh  (Va.)  206,  285 

Bank  of  United  States  v.  Stewart, 
4  Dana  (Ky.)  27,  283 

Bank  v.  Douglass,  4  Watts  (Pa.)  95,  283 

Bank  of  Virginia  v.  Boisseau,  12 
Leigh  (Va.)  387,  285 

Bank  of  Toronto  v.  Hunter,  4  Bos- 
worth  (N.  Y.)  646,  262 


Section 
Bank  of  Hopkinsville  v.  Rudy,  2 

Bush  (Ky.)  326,  268 

Bank  of  Pennsylvania  v.  Potius,  10 

Watts  (Pa.)  148,  266,  267,  486 

Bank  of  the  State  of  Missouri,  Fur- 

nold  V.  44  Mo.  336,  281 

Bank  of  Montreal  v.  McFaul,  17 

Grant's  Ch.  R.  234,  123 

Bank  of  British  North  America  v. 

Cuvillier,  14  Moore's  Privy  Coun- 
cil Cas.  187,  •  145 
Bank  of  Middlebury  v.  Bingham, 

33  Vt.  621,  94 

Bank  of  New  York  v.  Livingston, 

2  Johns.  Cas.  409,  86 

Bank  of  Montpelier  v.  Joyner,  33 

Vt.  481,  94 

Bank  of  Newbury  v.  Richards,  35 

Vt.  281,  94 

Bank  of  U.  S.  Conway  v,  6  J.  J. 

Marsh  (Ky.)  128,  95 

Bank  of  Kentucky,  Pendleton  v. 

1  T.  B.  Mon.  (Ky.)  171,  479,  521 
Bank  of  Brighton  v.  Smith,  12  Al- 
len. 243,  478,  521 
Bank  of  the  Northern  Liberties  v. 

Cresson,  12  Serg.  &  Rawle  (Pa.) 

306,  444 

Bank  v.  Munford,  6  Ga.  44,  505 

Bank  v.  Knotts,    10    Richardson 

Law  (So.  Car.)  543,  120,  173 

Bank  v.   Estate  of  Leavenworth, 

28  Vt.  209,  319 

Bank  v.  Adger,  2  Hill  Eq.  (So. 

Car.)  262,  269 

Bank  v.  Fordyee,  9  Pa.  St.  275,  34,  378 
Bank  v.  Leland,  5  Met.  (Mass.)  259,  376 
Bank,  South  Carolina  Manf.  Co.  v. 

6  Rich.  Eq.  (So.  Car.)  227,  217 

Bank  v.  Hammond,  1   Rich.  Law 

(So.  Car.)  281,  170 

Bank  v.  Klingensmith,    7  Watts 

(Pa.)  523,  *         206 

Bank  of  Wooster  v.  Stevens,  6  Ohio 

St.  262,  202 

Bank,  Spaldmg  v.  9  Pa.  St.  28,  214 
Bank  v.  Mumford,  6  Ga.  44,  17 

Bank  v.  Haskell,  51  New  Ham  p. 

116,  211,  360 


TABLE    OF   CASES. 


XVH 


Section 
Bank,  McDowell  v.  1  Harrington 

(Del.)  369,  27,  376 

Banks  v.  Brown,  4  Yerger  (Tenn.) 

198,  396 

Banks,  White  v.  21  Ala.  705,  234 

Banks,  Stovall  v.  10  Wallace  583,  496 
Banks,  Davis  v.  45  Ga.  138,  9 

Banks'  Exrs.,  Mountjoy  v.  6  Munf. 

(Va.)  387,  198 

Bankston,  Goff  v.  35  Miss.  518,  349 
Bangs  V.  Strong,  7  Hill  (N.  Y.) 

250,  27, 313 

Bangs  V.  Strong,  4  New  York  315,  27 
Bangs  V.  Strong,  10  Paige  Ch.  R. 

11,  299 

Bangs  V.  Mosher,  23  Barb.  (N.  Y.) 

478,  317 

Bane,  Roberts  v.  32  Texas,  385,  328 
Banning,  Wolf  v.  3  Minn.  202,  22 

Bancroft  r.  Pearce,  27  Vt.  668,  197 
Bancroft  v.  Abbott,  3  Allen,  524,  194 
Barickman  v.  Kuykendall,  6  Blackf. 

(Ind.)  21,  66 

Barney  v.  Patterson,   6  Harr.   & 

Johns.  (Md.)  182.      '  06 

Barney,  Peck  r.  13  Vt.  93,  158,170,  175 
Barney,  Daniels  v.  22  Ind.  207.  11 

Barney  v.  Clark,  46  New  Hamp. 

514,  212,  381 

Barney,  Foster  v.  3  Vt.  60,  83 

Barney  v.  Grover,  28  Vt.  391.  177 

Barney,  Gaston  r.  11  Ohio  St.  506,  286 
Barnes,  Hanson  v.  9  Gill  &  Johns. 

(Md.)  359,  66 

Barnes  v.  Mott,  64  New  York,  397, 

21,  395 
Barnes,  Atlantic  and  Pacific  Tele- 
graph Co.  V.  64  New  York,  .385,  363 
Bams  V.  Barrow,  01  New  York,  39,  97 
Barnes,  Hotchkiss  i\  34  Ct.  27,  130,  131 
Bartol,  Freeport  v.  3  Greenl.  (Me.) 

340,  66 

Barrett,  Lapham  r.  1  Vt.  247,  70 

Barrett,  Sisson  v.  2  New  York,  406,  17 
Barrett,  Duff  v.  17  Grant's  Ch.  R. 

187,  325 

Barrett,  Duff  r.  15  Grant's  Ch.  R. 

632,  325 

Barrett,  Clark  v.  19  Mo.  39,  503 

B 


Section 
Ban-et,  Perry  v.  18  Mo.  140,  506,  512 
Barnum,  Cbilds  v.  11  Barb.  (N.Y.) 

14,  70 

Barry,  Bank  of  Orleans  v.  1  Denio, 

116,  155 

Barry  v.  Law,  1  Cranch  (C.  C.)  77,  75 
Barry  v.  Ransom,  12  New  York, 

462,  46,  226 

Bany,  Rice  r.  2  Cranch  C.  C.  447,  54 
Barnard  v.  Heydrick,  49  Barb.  (N. 

Y.)62,  75 

Barnard,   Lyde  v.   Tyrwh.  &  Gr. 

250,  59 

Barnard,  Sampson  v.  98  Mass.  359,  336 
Barnard  v.  DarUng,  11  Wendell, 

28,  489 

Barstow  v.  Gray,  3  Greenl.  (Me.) 

409,  75 

Barrows  v.  Lane,  5  Vt.  161,  153 

Barefoot's    Exrs..    Simmons   v.   2 

Hay.  (Nor.  Car;)  606,  5 

Barren  v.  Trussell,  4  Taunt.  117-20. 

6,  51,  68 
Baniabee,  "Badger  v.  17  New  Hamp. 

120,  9 

Bartlett  v.  Willis,  3  Mass.  86.  12 

Bartlett,  Wright  v.  43  New  Hamp. 

548,  300,  329 

Bartlett,  State  v.  30  Miss.  624,  444 
Bartley  v.  Yates,  2  Hen.  &  Mun. 

(Va.)  398,  15 

Barker,   Smith  v.   6  Watts  (Pa.) 

508,  431 

Baron,  Admr.  Raney  v.  1  Fla.  327,  404 
Barber  r.  Bucklin,  2  Denio,  45,  52,  55, 58 
Barber,  Swain  v.  29  Vt.  292,  240 

Barber  v.  Burrows,  51  Cal.  404,  323 
Barber,  Starrett  v.  20  Me.  457,  94 

Barker,  Warren  v.  2  DuvaU  (Ky.) 

155.  59 

Barker  v.  Scudder,  56  Mo.  272,        169 
Barker,  Frye  v.  4  Pick.  382,      120,  208 
Barker,  Price  v.  4  ElUs  &  Black. 
Barker  v.  Buel,  5  Gushing.  519,        213 
Barkery.  McClure,  2  Blackf.  (Ind.) 

14.  321, 325 

Barker,  Bill  v.  16  Gray,  62,  98 

Barker  v.  Parker,  1  Dum.  &  East. 

287,  99 


XVlll 


TABLE   OF    CASES. 


Section 
Barker,  Lannsee  v.  3  Wlieaton,  101,  114 
Barker  v.  Scudder,  56  Mo.  272,  53 

Barfield,  Adkinson  v.   1  McCord, 

(So.  Car.)  575,  50l 

Bamback  v.  Reiner,  8  Minn.  59,  199 
Barrow,  Stewart  v.  55  Ga.  664,  200 
Barrow  v.  Shields,  13  La.  An.  57,  370 
BaiTOW,  Rhinelander  v.  17  Johns. 

538,  295 

Barrow,  Bams  r.  61  New  York,  39,  97 
BaiTOW,  Welsh  v.  9  Robinson  (La.) 

535,  443 

Bamhill,  Peters  v.  1  HiU  Law,  (So. 

Car.)  234,  181.  184 

Barg-er,   Blandford's  Adm'r  v.   9 

Dana  (Ky.)  22,  382 

Ban-ington,  Bank  of  Washington 

V.  2  Pen.  &  Watts  (Pa.)  27,  344 

760,  329 

Barbour,  Phares  v.  49  111.  370,  372 
Bartlow  v.  Boude,  3  Dana  (Ky.) 

591,  380 

Bai'dwell    v.  Lydall,   5  Moore   & 

Payne,  327,   "  286 

Bardwell  v.  Lydall,  7  Bing.  489,  286 
Barnett  v.  Smith,  17  111.  565,  99 

Barclay  v.  Lucas,  3  Douglass,  321,  101 
Barclay  v.  Lucas,  1  Durn.  &  East. 

291,  note,  101 

Barstow,  Wood  v.  10  Pick.  368,  82 

Barstow,   Perkins  v.  6  Rhode  Is. 

505,  120 

Barnitz,  Eger.  8Pa,  St.304,  84 

Barman  v.  Carhartt,  10  Midi.  338,     83 
Bamnger  v.  Warden,  12  Cal.  311,     52 
Bass,  Hobson  v.  Law  Rep.  6  Chan- 
cery Appl.  Cas.  792,  219 
Bascom,  Appleton  y.  3  Met.  (Mass.) 

160,  179 

Bashford  v.  Shaw,  4  Ohio  St.  264,  173 
Bassett,  Furber  v.  2  Duvall  (Ky.) 

433,  299 

Baskin  v.  Godbe,  1  Utah,  28,  296 

Bastow  V.  Bennett,  3  Camp.  220,  134 
Bashford  v.  Shaw,  4  Ohio  St.  264,  85 
Bateman  v.  Phillips,  15  East.  272,  67 
Bateman,  Phillips  v.  16  East.  356,  68 
Batchelor,  Boom  v.  1  Hurl.  &  Nor. 

225,  70 


Section 
Bate,  Hunt  v.  3  Dyer,  272  (a)  9 

Bates,  Alexander  v,  33  Ga.  125,  434 
Bates,  admr.  Cain  v.  35  Mo.  427,  392 
Bates  V.  Stan-,  6  Ala.  697,  63 

Bates,  Beach  v.  12  Vt.  68,  385 

Bates,  Pickett  V.  3  La.  An.  627,  177,  182 
Bates,  Darst  v.  51  111.  439,  199,  282 
Bates,  Puckett  v.  4  Ala.  390,  61 

Bates,  Beach  v.  12  Yt.  68,  85 

Bates  V.  Branch  Bank  at  Mobile,  2 

Ala.  689,  503 

Bates  V.  State  Bank,   7  Ark.   (2 

Eng.)  394,  504 

Bates,  State  v.  36  Yt.  387,  476 

Bates,  Treasurers  v.  2  Bailey  Law 

(So.  Car.)  362,  518 

Bates,  State  v.  36  Yt.  387,  44-5 

Bates,  Supervisors  of  Rensellaer  v. 

17  New  York,  242,  446 

Bates,  Treasurer  v.  2  Bailey  Law, 

(So.  Car.)  362,  443 

Bateson  v.  Gosling,  Law  Rep.   7 
Bateman,  Mallet  v.  Law  Rep.  1  C. 

P.  163 ;  S.  C.  16,  J.  Scott,  N.  S. 

530.  60,  61 

Batturst\  Sellers,  5  Harr.  &  Johns. 

(Md.)  117,  76 

Battle  V.  Hart,  2  Dev.  Eq.  (Nor. 

Car.)  31,  219 

Battle  V.  Blake,  1  Dev.  Law  (Nor. 

Car.)  381,  85 

Com.  PI.  9.  123 

Baumann  v.  James.  Law  R.  3  Ch. 

App.  508,  67 

Baugher's  Exrs.  v.    Duphom,  9, 

Gill  (Md.)  314.  291 

Baxter,  Downer  v.  30  Yt.  467,  187 

Baxter  v.  Marsh,  1  Yerg.  (Tenn.) 

460,  515 

Bayard,  Ashton  v.  71  Pa.  St.  139,  9,  86 
Bay  V.  Tallmadge,  5  John's  Ch.  305,  27 
Bay  City,  McCorniick  v.  23  Mich. 

457,  356 

Bay  City,  Stevenson  v.  26  Mich.  44, 

355,  452 
Beardsley,  Castle  v.  10  Hun,  343,  68 
Bearden,  Hazen  v.  4  Sneed  (Tenn.) 

48,  63 

Beardslee,  Buckley  v.  2  South,  572,     63 


TAELE   OF    CASES. 


XIX 


Section 
Bean,  Adams  v.  12  Mass.  139,  73 

Bean  v.  Valle,  2  Mo.  103,  68 

Bean,  Coleman  v.  1  Abbott's  Rep. 

Om.  Cas.  (N.  Y.)  394,  29,  353 

Bean  v.  Parker,  17  Mass.  591,  127 

Bean,   Sanders   v.   Busbee's  Law, 

(Nor.  Car.)  318,  487 

Beach  v.  Bates,  12  Vt.  68,  85,  885 

Beach,   Bank  of  Burlington  v.  1 

Aiken  (Vt.)  62,  94 

Beach  v.  Boynton,  26  Vt.  725,  503 

Beach,  Wood  v.  7  Vt.  522,  72 

Beale,  Crofts  v.  11  Com.  B.  172,  8 

Bearsh,  Sears  i'.  7  La.  An.  539,  404 
Beavan,  Bushnell  v.  1  Bing.  N.  C. 

103,  50,  60,  71 

Beavan,  Bushnell  v.  4  Moore  & 

Scott,  622,  60 

Beatty,  Union  Bank  v.  10  La.  An. 

378,  359 

Beaman  v.  Blanchard,  4   "Wend. 

4^32,  223 

Beaver  v.  Beaver,  23  Pa.  St.  167,  195 
Beaver,  Fleming  v.  2  Rawle  (Pa.) 

128,  270 

Beal  V.  Brown,  13  Allen.  114,  196 

Beardsley,  Warner  v.  8  Wend.  194,  206 
Beaubien  v.   Storey,    Speers    Eq. 

(So.  Car.)  508,  374 

Beard,  State  v.  11  Robinson  (La.) 

243,  323 

Beabout,  Watson  v.  18  Ind.  281,  115 
Beall  V.  Cochran,  18  Ga.  38,  125 

Beavans,  Wilson  v.  58  Ills.  232,  53 
Bealls,  Andrus  v.  9  Cowen,  693,  489 
Beckett,  Pitts  v.  13  Mees.  &  Wels. 

743,  66,  75 

Beckett,  Chater  v.  7  Term  R.  201,  38 
Beckley  v.  Eckert,  3  Pa.  St.  292,  36 
Beckham  v.  Pride,   6   Richardson 

Eq.  (So.  Car.)  78,  244 

Beckwith.  Lowe  r.  14  B.  Monroe, 

(Ky.)  150,  131,  163,  168 

Beckman,  Remsen  v.  25  NewYork, 

552,  206 

Beckman,  Thomas  v.   1   B.   Mon. 

(Ky.)  29,  525 

Beckman,  Thomas  v.   1  B.  Mon. 

(Ky.)  29,  184 


Section 
Beckley  v.  Munson,  22  Ct.  299,  187 
Bechtel,  Hoffman  v.  52  Pa.  St.  190,  85 
Beckwith,  Newman  v.  5  Lansing, 

(N.Y.)  80,  487 

Beck,  Taylor  v.  13  111.  376,  208 

Bedell,  Sharp  v.  5  Gilman  (111.)  88,  393 
Bedford,  Kenninghamt;,  1  B.  Mon. 

(Ky.)  325,  309 

Beezely,  Welford  v.  1  Ves.  Sr.  6,  75 
Beebe  v.  Dudley,  26  New  Hamp. 

249,  159,  173 

Beekman  v.  Hale,  17  Johns,  134,  161 
Beeson's  Admr.,  Beeson  v.  1  Har- 
rington (Del.)  466,  429 
Beeket,  Chater  v.  7  Term  R.  201,  50 
Beesly  v.  Hamilton,  50  111.  88,  349 
Beehervaise  v.  Lewis,  Law  Rep.  7 

Com.  PI.  372,  203 

Beers,  Swift  v.  3  Denio,  70,  121 

Beech,  Union  Bank  v.  3  Hurl.  & 

Colt.  672,  123 

Beeker  v.  Saunders,  6  Ired.  Law 

(Nor.  Car.)  .380,  85 

Beebe,  Musick  v.  17  Kansas,  47,  49G 
Behm,  Stewart  v.  2  Watts  (Pa.) 

356,  127 

Bell  V.  Welch,  9  Man.  Gr.  &  Scott, 

154,  71 

Bell  V.  Manning,  11  Grant's  Ch.  R. 

142.  123 

Bell,  Gates  v.  3  La.  An.  62,  10 

Bell  V.  Rawson,  30  Ga.  712,  431 

Bell,  RajTier  v.  15  Mass.  377,  440 

Bell,  Macdonald  v.  3  Moore's  Priv. 

Co.  Cas.  315,  392 

Bell  V.  Jasper,  2  Iredell's  Eq.  (Nor. 

Car.)  597,  252 

Bell,  Agnewr. Watts.  (Pa.)  31,  220,  233 
BeU  V.  Norwood,  Louisiana  (4  Cur- 
ry) 95,  98 
Bell,  Dickason  v.  13  La.  An.  249,  125 
Bell  V.  Bruen,  1  How.  (U.  S.)  169,  73 
Bell,  Evans  v.  45  Texas,  553,  84 
Bell,  Clark  v.  Humph.  (Tenn.)  26,  194 
Bell,  McNary  v.  5  Robinson  (La.) 

418,  528 

Bell,  Inhabitants  of  Colerain  v.  9 

Met.  (Mass)  499,  468 

BeU,  Clark  t).  2  Littell  (Ky.)  164,     420 


XX 


TABLE   OF   CASES. 


Section 
Bell's  Admr.  v.  Jasper,  2  Ired.  Eq. 

(Nor.  Car.)  697,  222 

Belches,  West  v.  5  Munford  (Va.) 

187,  234 

Belcher  v.  Smith,  7  Cush.  482.  154 

Belt,  McCune  v.  45  Mo.  174,  225,  233 
Belding  v.  State,  25  Ark.  315,  431 

Belloni  v.  Freeborn,  63  New  York, 

383,  190 

Bellume  v.  "Wallace,  2  Rich.  Law 

(So.  Car.)  80,  213 

Bellows  V.  Lovell,  5  Pick.  307,  381 
Bellingham  v.    Freer,    1   Moore's 

Pi-iv.  Cou.  Cas.  338,  316 

Belfast  Banking  Co.    v.   Stanley, 

Irish  Rep.  1  Com.  Law,  693,  296 
Belloni  v.  Freeborn,  63  N.  Y.  383,  78 
Belanger,  Yerret  v.  6  La.  An.  109,  532 
Belfield  Union,  v.  Pattison  1  Hurl. 

&  Gor.  623,  437 

Belfield  Union  v.  Pattison,  2  Hurl. 

&  Gor.  523,  473 

Bennet,  Allen  v.  3  Taunt.  169,  66, 67,  75 
Bennett,  Eastman  v.  6  Wis.  232,  70 
Bennett,  Lord  Harberton  v.  Beatty, 

(Ir.  Ch.)  386,  21,  373 

Bennett  v.  Buchanan,  3  Ind.  47,  181 
Bennett  v.  Dowling,  22  Texas,  660,  187 
Bennett  v.  The  Auditor,  2  West 

Va.  441,  324 

Bennett,  Bastow  v.  3  Camp.  220,  134 
Bent  V.  Cobb,  9  Gray,  3.J7,  76 

Bentham   v.   Cooper,   5    Mees.  & 

Wels.  621,  71 

Benton  v.  Fletcher,  31  Vt.  418,  154 
Benton  v.  Pratt,  2  Wend.  385,  59 

Benton  v.  Gibson,  1  Hill  (So.  Car.) 

56,  172 

Benton,  Bird  v.  2  Dev.  Law  (Nor. 

Car.)  179,  190 

Benton,   Bigelow  v.  14  Barb.  (N. 

Y.)  123,  112 

Benton,  State  v.  48  New  Hamp. 

551,  440 

Benton  v.  Gibson,  1  Hill,  Law  (So. 

Car.)  56,  84 

Benton  v.  Fletcher,  31  Vt.  318,  84 

Benson,  "Wood  v.  2  Cromp.  &  Jer. 

94,  9,  38 


Section 
Benson,  Wood  v.  2  Tyrwh.  93,  38 

Bengal  Government,    Lalla  Bun- 

seedhur  v.   14   Moore's    Indian 

Appeal,  86,  463 

Bently  v.  Harris's  Admr.  2  Gratt. 

(Va.)  357,  415 

Bently  v.  Harris'  Admr.  2  Gratt. 

(Va.)  358,  222 

Bentley,  Weed  v.  6  Hill  (N.Y.)  56,  201 
Benham  v.  Assurance  Co.  7  Wels. 

Huri  &  Gor.  744,  351 

Bently  v.  Gregory,   7  T,   B.  Hon. 

(Ky.)  368,  198 

Benedict  &  Miner,  58  111.  19,  334 

Benedict,  Stamford  Bank  v.  15  Ct. 

437,  265,  286 

Benedict  v.  Sherill,  Lalor's  Sup.  to 

Hill  &  Denio,  219,  96 

Benedict,  Thrall  v.  13  Vt.  248,  94 

BeueSeld,  Eaton  v.  2  Blackf.  (Ind.) 

52,  '  494 

Berry,  Bryan  v.  6  Cal.  394,  10,  148 

Berry,  Paul  v.  78  111.  158,  20 

Berry,  State  v.  34  Ga.  546,  429 

Berkey,  Miller  v.  27  Pa.  St.  317,      388 
Berkly,  Morrison  v.  7  Serg.  &  Rawle 

(Pa.)  238,  181 

Berand,  Chase  v.  29  Cal.  138.  400 

Berrmgton,  Rees  v.  2  Ves.  Jr.  540, 

205,  317 
Berthold,  Admx.   v.   Berthold,   46 

Mo.  557,  260 

Berg  V.  Radcliff,  6  Johns.  Ch.  302,  118 
Berheim,  Teller  v.  3  Phila.  (Pa.) 

299,  84 

Berkowitz,  Hendrie  v.  37  Cal.  113,  537 
Besshears  v.  Rowe,  46  Mo.  501,  9 

Best  V.  Stow,  2  Sandf.  Ch.  298,         252 
Besore  v.  Potter,  12  Serg.  &  Rawle 

(Pa.)  154,      .  118 

Bessinger  v.  Dickerson,   20  Iowa 

260,       ,  481 

Betheme  v.  Dozier,  10  Ga.  235,  328,  504 
Bevans,  Wilson  v.  58  111.  232,  49 

Bewley  v.  Whiteford,  Hayes  (Irish 

Rep.)  356,  71 

Beyerie  v.  Hain,  61  Pa.  St.  226,       467 
Bibb,   Ellis  v.  2  Stew.  (Ala.)  63, 

296,  300 


TABLE   OF   CASES. 


XXI 


Section  ; 
Bibb  V.  Martin,  1-i  Smedes  &  Mar. 

(Miss.)  87,  284 

Eicknell,  Gill  v.  2  Cusb.  355,  76 

Bickneil,   Evans   v.   6  Vesey,    Jr. 

174,  59 

Bickford  v.  Gibbs,  8  Cusb.  154,  7,  175 
Bickford,  Blodgett  v.  30  Vt.  731,  212 
Bidwell,  Parker  v.  3  Ct.  84,  427 

Bigelow,  Dorman  v.  1  Fla.  281,  73,  74 
Bigelow,  Cabin  v.  18  Pick.  369,  61,  62 
Bigelow,  De  Witt  v.  11  Ala.  480,  296 
Bigelow  V.  Benton,  14  Barb.  (N. 

Y.)  123,  112 

Bigelo-v  V.  Bridge,  8  Mass.  275,  140 
Bigelow  V.   Comegys,   5  Obio  St. 

256,  420 

Billings,  Manufacturers'   Bank  v. 

17  Pick.  87,  295 

Billingsby,   Day  v.  3  Busli.  (Ky.) 

157,  "      516 

Bill  V.  Barker,  16  Gray,  62,  98 

Bing,  Smitb  v.  3  Obio,  33,  242 

Bingbam,  Blydenburgb  v.  38  New 

York,  371,  375 

Bingham,  Bank  of  Middlebuiy  v. 

33Vt.  621,  94,  304 

Bingbam,   County  of  AVapello  v. 

10  Iowa.  39,  464 

Binz  V.  Tyler,  79  111.  248,  106 

Binsse  v.  Wood,    37  New  York, 

526,  91 

Bivbis  V.  Helsey,  4  Met.  (Ky.)  78,  349 
Bu-krayr  v.  Darnell,  1  Salk.  27;  Id. 

2  Ld.  Raym.  1,085,  63 

Bird  V.  Blosee,  2  Vent.  361,  '  66 

Bird  V.  Boulter,  4  Barn.  &  Adol. 

443,  76 

Bird  V.  Gammon,   3  Bing.  N.  C. 

883,  48 

Bird  V.  Benton,  2  Dev.  Law  (Nor. 

Car.)  179,  190 

Bird,    Sacramento  Co.  v.  31  Cal. 

66,  472 

Bird  V.  Gammon,  5  Scott,  213,  50 

Bird,  State  v.  2  Ricbardson  Law 

(So.  Car.)  99,  459 

Bkckbeadw.  Brown,  5  Hill,  634,  67,  96 
Birckbead  v.  Brown,  2  Denio,  375,  96 
Bu-ge,  Claiborne  v.  42  Texas,  98,      314 


Section 
Burkey,  Butler  v.  13  Obio  St.  514,  231 
Bircbim,  State  v.  9  Nevada,  95,  439 
Bissell,  Butler  v.  1  Root  (Ct.)  102,  436 
Bissell  V.  Saxton,  66  New  York,  55, 

466,  522 
Bisbop,  Pidcock  v.  3  Barn.  &  Cress. 

605,  366 

Bisbop  V.  Day,  13  Vt.  81.  192 

Bisbop,  Tousey  v.  22  Iowa,  178,  315 
Bisbop,    Agricultural  Bank  v.    6 

Gray,  317,  305 

Bisbop,  Hidden  v.  5  Rbode  Is.  29,  291 
Bittick  w.Wilkins,  7Heisk.  (Tenn.) 

307,  277 

Bizzell  V.  Smitb,  2  Dev.  Eq.  (Nor. 

Car.)  27,  203 

Blair  v.  Snodgrass,  1  Sneed  (Tenn.) 

1,  66 

Blabr,  Curtis  v.  26  Miss.  309,  76 

Blair,  State  v.  32  Ind.  313,  335 

Blair  v.  Perpet.  Ins.  Co.   10  Mo. 

559,  343,  521 

Blair,   Planters'    and    Merchants' 

Bank  v.  4  Ala.  613,  94 

Blair,  Broyles  v.  7  Yerg.  (Tenn.) 

279,  418 

Blatcbford  r.  Milliken,  35  111.  434,  148 
Blanchard,  Dexter  w.  11  Allen,  365,  44 
Blaucbard,Mann  v.  2  Allen  386,  69 
Blancbai-d,  Gibbs  v.  15  ]\ticb.  292,  62 
Blake  v.  Cole,  22  Pick.  97,  46 

Blake,  White  v.  22  Wend.  612,  429 
Blake,  Driscoll  v.  9  Irish  Cb.  R. 

356,  29 

Blake  v.  Downey,  61  Md.  437,  176 

Blake  v.  White,  1  Younge  &  Coll. 

(Exch.)  420,  305 

Blake,  State  v.  2  Obio  St.  147,  124 
Blake,  Battle  v.  1  Dev.  Law  (Nor. 

Car.)  381,  85 

Black's  Exr's,  Martin  v.  20  Ala.  309,  47 
Black  River  Bank  v.  Page,  44  New 

York,  453,  393 

Black,  Sherman  v.  49  Vt.  198,  230 

Black,  Irick  v.  2  C.  E.  Green  (N. 

J.)  189,  192 

Black  V.  The  Ottoman  Bank,    15 
Black,  Carter  v.  4  Dev.  &  Bat.  Law 

(Nor.  Car.)  425,  180 


XXll 


TABLE    OF   CASES. 


Section 
Blackiston,  ]\Iorgan   v.   5  Har.  & 

Johns.  (Mel.)  61,  411 

Blackwell  v.  Wilson,  2  Richardson 
Blackstone  Bank  v.  Hill,  10  Pick. 

129,  305 

Black'mcre,  King  v.  72  Pa.  St.  347,  288 
Blackney,  Dauber  v.  38  Barb.  (N. 

Y.)  432,  53 

Blackburne  v.  Boker,  1  Pa.  Law 

Jour.  Rep.  15,  86 

Blackford,  People  v.  16  111.  166,       469 
Law  (So.  Car.)  322,  428 

Blazer  v.  Bundy,  15  Ohio  St.  57,  27 
Blagden  v.  Bradbear,  12  Vesey  466,  76 
Blanton,  Jones  v.  6  Iredell's  Eq. 

(Nor.  Car.)  115,  382 

Blanchard,   Beaman  v.  4   Wend, 

432,  223 

Blanton,  Jones  v.  6  Ired.  Eq.  (Nor. 

Car.)  115,  232 

Blandford's    Adm.    c.    Barger,  9 

Dana  (Ky.)  22,  382 

Blanton,  Jones  v.  6  Ired.  Eq.  (Nor. 

Car.)  115,  255,  461 

Moore's  Priv.  Con.  Cas.  472,         368 

Blaine  v.  Hubbard,  4  Pa.  St.  183,    326 

Blakely,  Newcomb  v.  1  Mo.  Appl. 

R.  289,  319 

Blazer  v.  Bundy,  15  Ohio  St.  57,  307 
Blalock  V.    Peak?,    3  Jones   Eq. 

(Nor.  Car.)  323,  277 

Blakeley,  Anderson  v.  2  Watts  & 

Serg.  (Pa.)  237,  137 

Bland,  Smith  v.  7  B.  Mon.  (Ky.) 

21.  499 

Blache,  Mayor  v.  6  La.  (Cun-y)  500, 

369,  476 
Blakeniore,    State    v.  7    Heiskell 

(Tenn.)  638,  93 

Bleakley  v.  Smith,  11  Simons,  150,  75 
Blest  V.  Brown,  4  De  Gex,  Fish.  & 

Jones,  367,  Id.  3  Giffai-d,  4-50,  348 
Bledsoe  v.  Nixon,  68  Nor.  Car.  521,  273 
Bleeker  v.  Hyde,  3  McLean,  279,  97 
Bliss,  Bull  V.  30  Vt.  127,  84,  168 

Blosee,  Bird  v.  2  Vent.  361,  '  66 
Blore  V.  Sutton,  3  Merivale,  237,  75 
Blood,  Firman  v.  2  Kansas,  496,  147 
Blood  r.  Hardy,  15  Me.  61,  76 


Section 
Blow  r.  Mavnard,  2  Leigh  (Va.) 

29,  "  182 

Block,  Kock  V.  29  Ohio  St.  565,  185 
Blodgett  V.  Bickford,  30  Vt.  731,  212 
Blodgett,  Gannett  v.  39  New  Hamp. 

150,  266- 

Bluck,  Chapman  r.  5  Scott,  515,  66 
Blunt,  Simpson  v.  42  Mo.  542,  508 

Blydenburgh,  Ogden  v.  1  Hilton, 

(N.  Y.)  182,  16 

Blydenburgh  v.  Bingham,  38  New 

York,  371,  375 

Boardman,  Gilligan  v.  28  Me.  81,  68 
Boardman   v.  Spooner,    13  Allen, 

353,  76 

Boardman  v.  Gillighan  v.  29  Me. 

79,  7,  173 

Board  of  Trustees,  Ladd  v.  80  111. 

233,  353 

Board  of  PoUce  of  Clark  Co.  v. 

Covington,  26  Miss.  470,        298,  328 
Board  of    Comm'rs,  Davis  v.   72 

Nor.  Car.  441,  194 

Board  of  Super\dsors  v.   Otis,   62 

New  York,  88,  474 

Board  of  Supervisors  of  Jefferson 

Co.  V.  Jones,  19  Wis.  51,  476 

Board  of  Commissioners,  Driskill  v, 

53  Ind.  532.  505 

Bochmer  v.  County  of  SchuylkiU, 

46  Pa.  St.  452,  446 

Bodman,  Andre  v.  13  Md.  241,  48 

Boddam,  East  India  Company  v.  9 

Vesey,  464,  118 

Boaz,  Elhott  v.  13  Ala.  535,  361 

Boatt  V.  Brown,  13  Ohio  St.  364, 

331,  3:34 
Boaler  v.  Mayor,  19  J.  Scott,  (N. 

S.)  76,  329 

Boehm  v.  Campbell,  8  Taunt.  679, 

Id.  3  Moore  15  70 

Boehne  v.  Mm-phy,  46  Mo.  57,  132 

Boecker,  United  States  v.  21  Wal- 
lace, 652,  344 
Bodey,  Holt  v.  18  Pa.  St.  207,  378 
Bogarth  v.  Breedlove,  75  111.  561,  333 
Boggs.  V.  State,  46  Texas,  10,  477,  510 
Boiilens,  MuUer  v.  2  Wash.  C.  C. 

378,  57 


TABLE    OF    CASES. 


XXlll 


Section 
Bohannon  v.  Combs,  12  B.  Mon. 

(Ky.)563,  227 

Boisseau,   Bank  of  Virginia  v.  12 

Leigh  (Va.)  387,  285 

Boice  V.  Main,  4  Deuio,  55,  487 

Boker,  Blackburne  v.  1  Pa.  Law 

Jour.  Rep.  15,  86 

Boiling  V.  Doneghy,  1  Duvall,  (Ky.) 

220,  254 

Boiling,  Lyon  v.  9  Ala.  463,  270 

Bold,   London    Assurance    Co.   v. 

6  Adol.  &  Ell.  (N.  S.)  514,  98 

Bomar  v.  Wilson,  1   Bailey  Law 

(So.  Car.)  461,  443 

Bonar  v.  Macdonald,  3  House  of 

Lords  Cases,  226,  242 

Bonner,  Tatum  v.  27  Miss.  760,  88 

Bonney  v.  Seely,  2  Wend.  481,  181 
Bonney  v.  Seely,  2  Wend.  481,  182, 187 
Bonney  v.  Bonney,  29  Iowa,  448,  370 
Bonta    V.    Curry,   3    Bush.    (Ky.) 

678,  385 

Bonta  V.  Mercer  County  Court,  7 

Bush  (Ky.)  576.  474 

Bonsai  V.   Harker,   2    Harrington 

(Del.)  327,  436 

Bonser  v.  Cox,  4  Beavan,  379,  103,  350 
Bonham  v.  Galloway,  13  III.  68,  280 
Bone  V.  Torrey,  16  Ark.  83.  181,  527 
Bond  V.  Ray,  5  Humph.  (Tenn.) 

492,  493 

Bond,  Thompson  v.  1  Camp.  4,  59 

Bond,  Pipkin  r.  5  Ired.  E.  (Nor. 

Car.)  91.  296 

Bonde,  Bartlow  v.  3  Dana  (Ky.) 

591,  380 

Bonser  v.  Cox,  6  Beavan,  110,  103 

Booth  V.  Storrs,  75  111.  438,  354 

Booth,  Comegys  v.  3  Stew.  (Ala.) 

14,  •  326 

Boothly,  Morley  v.  3  Bing.  107.  61,  68 
Boothly,  Morley  v.  10  Moore  395, 

7,  9,  71 
Boom  V.  Batchelor,  1  Hurl.  &  Nor. 

225,  70 

Boorman,  Oakley  v.  21  Wend,  588, 

74,  81 
Boody  V.  United  States,  1  Wood- 
bury &  Minot,  150,  469  , 


Section 
Boomer,  Braley  v.  116  Mass.  527,  409 
Bordelon  v.  Weymouth,  14  La.  An. 

93,  317 

Bordon  v.  Gilbert,  13  Wis.  670,  116 
Borden  v.  Houston,   2  Tex.  594, 

29,  470 
Borst,   Herrick  v.   4  Hill  (N.  Y.) 

650,  206 

Borough  of  Elizabeth,   Steiple  v. 

2  Butcher  (N.  J.)  407,  29 

Bordley,  Buchannan  v.  4  Harr.  & 

McHen.  (Md.)  41,  296 

Bosson,  Williams  i?.  11  Ohio,  02  156 
Bostick,  Hill  v.  10  Yerg.  (Tenn.) 

410,  319 

Bostick,  Kyle  v.  10  Ala.  589.  309 

Boston  &  Sandwich  Glass  Co.  v. 

Moore  119  Mass.  435,  1.30,  135 

Boston  Hat  Manufactory  v.  Messin- 

ger  2  Pick.  223,  342 

Bostock,  The  Wardens  of  St.  Sav- 
iors Southwark,  v.  5  Bos.  &  Pul. 

175,  140 

Boswell  V.  Lainhart,  2  La.  (Miller) 

397.  443 

Bostwick,  Camp  v.  20  Ohio  St.  337,  259 
Bostwick,  Nelson  v.  5  Hill  ;;7,  168 

BottrUl,  Nothingham  Hide  Co.  v. 

Law  Rep.  8  Com.  PI.  694, 
Bothwell  V.  Sheffield,  8  Ga.  569,      488 
Boulter,  Bird  v.  4  Barn.  &  Adol. 

443,  76 

Boughton  V.  Bank  of  Orleans,  2 

Barb.  Ch.  R.  458,  244 

Boulton,  Cameron  v.  9  Up.  Can. 

C.  P.  R.  537,  244 

Boulware  v.   Robinson,   8    Texas, 

327,  181 

Boutle  V.  Martin,   16  La.  (Curry) 

133,  208 

Bowls,  Gray  v.  1  Dev.  &  Batt.  Law 

(Nor.  Car.)  437,  400 

Bourcier,  Hill  r.  29  La.  An.  841,  384 
Boultbee  v.  Stubbs,  18  Vesey,  20,  329 
Bouldin,  Holland  v.  4  T.  B.  Mon. 

(Ky.)  147,  437 

Bourne  v.  Todd,  63  Me.  427.  496 

Bourn,  English  v.   7   Bush  (Ky.) 

138,  508 


XXIV 


TABLE   OF   CASES. 


Section 
Bovard,  Simpson's  Exrs.  v.  74,  Pa. 

St.  351,  333,  357 

Bovill  V.  Turner,  2  Chitty,  205,  137 
Bowmaker,  v.  Moore,  7  Price,  223,  416 
Bowmaker,  Moore  v.  6  Taunt.  379,  416 
Bowmaker  v.  Moore,  3  Price,  214,  416 
Bowmaker,  Moore  v.  2  Marshall, 

392,  416 

Bowmaker,  Moore  v.  2  Marshall, 

81,  41G 

Bowes,  Woodworth  v.   5  Ind.   (3 

Port.)  276,  222 

Bowser  v.  Rendell,  31  Ind.  128,  231 
Bowdich  V.  Green,  3  Met.  (Mass.) 

360,  235 

Bowen  v.  Hoskins,  45  Miss.  183,  239 
Bowen,  Carpenter  v.  42  Miss.  28,  282 
Bowser  v.  Ptendell,  31  Ind.  128,  332 
Bowne,  Thompson  v.  39  New  Jer. 

Law(10  Vroom,)2,  296 

Bowland,  Loughridge  v.  52  Miss. 

546,  177 

Bowker  v.  Bull,  1  Simons  (N.  S.) 

29,  21,  275 

Bowman , "Woodbury  v.  14  Me.  154,  190 
Bowman,  Governor  v.  44  111.  499,  324 
Bowman,  Riddle  v.  27  New  Hamp. 

236,  178 

Bowman,  State  v.  10  Ohio,  445,  127 
Bowne,  Thompson  v.  39  New  Jer. 

Law  (10  Vroom.)  2,  208 

Bowler,  Connecticut  Mut.  Life  Ins. 

Co.  V.  1  Holmes,  263,  345 

Bower  v.  Com.  of  Wash  Co.,  25  Pa. 

St.  69,  476 

Box,  Lemmon  v.  20  Tex.  329,  56 

Boydell  v.   Drummond,    11   East, 

142,  66 

Bojmton  v.  Pierce,  79  111.  145,  147,  153 
Boynton  v.  Phelps,  52  111.  210,  413 

Boynton  v.  Robb,  22  111.  525,  413 

Boynton,  Beach  v.  26  Vt.  725,  503 

Boynton,  Nelson  v.  3  Met.  (Mass.) 

396,  50,  54 

Boynton,  TurriU  v.  23  Vt.  142,  309,  312 
Boyd,  Martin  v.  11   New  Hamp. 

385,  151 

Boyd,  Collins  v.  14  Ala.  505,  180 

Boyd  V.  Brooks,  34  Beavan,  7  196 


Section 
Boyd,  Briggs  v.  37  Vt.  534,  95,  225,  247 
Boyd,  Steele  v.  6  Leigh  (Va.)  547,  312 
Boyd,  Mayhew  ».  5  Md.  102,  345 

Boyd  V.  Gault,  3  Bush  (Ky.)  644,  492 
Boyd  V.  Caldwell,   4    Richardson 

Law  (So.  Car.)  117,  496 

Boyd,  United  States  v.  6  Howard 

(U.  S.)  29,  522 

Boyd  V.  Titzer,   6  Cold.    (Tenn.) 

568,  505 

Boyd  V.  Swuig,  38  Miss.  182,  445 

Boyd,  United  States  v.  15  Peters, 

187,  449 

Boyd  V.  Moyle,  2  Man.  Gr.  &  S.  644,  9 
Boyer,  Burr  v.  2  Nebraska,  265,  389 
Boykin  v.   Dohlonde,    1    Sel.   Cas. 

Ala.  502,  62 

Boyle,  Corprew  v.  24  Graft.  (Va.) 

284,  463 

Boyle  V.  Bradley,  26  Up.  Can.  C. 

P.  R.  373,  143 

Boyce,  Pride  v.  Rice  Eq.  (So.  Car.) 

275,  118 

Boyer,   Johnson  v.  3  Watts  (Pa.) 

376,  425 

Brady  v.  Sackrider,  1  Sandf.   (N. 

T.)  514,  62 

Branch  Bank  at  Mobile,  Winter  v. 

23  Ala.  762,  392 

Branch  Bank  at  Mobile,  Hooks  v. 

8  Ala.  850,  392 
Branch  Bank  at  Mobile  v.  James, 

9  Ala.  949,  17,  296 
Branch  Bank  at  Mobile,  Mauldlin 

V.  2  Ala.  502,  10 

Branch  Bank  at  Mobile,  Bates  v.  8 
Ala.  689,  503 

Branch  Bank  at  -  Montgomery  v. 
Perdue,  3  Ala  409,  206 

Branch  Bank  at  Mobile,  CuUum  v. 
23  Ala.  797,  282 

Branch  Bank  at  Huntsville,  Hous- 
ton V.  25  Ala.  250,  276 

Branch  v.  The  Macon  and  Bruns- 
wick R.  R.  Co.  2  Woods,  385,       282 

Branch  v.  Commonwealth,  2  Call 
(Va.)  510,  451 

Branch,  Commonwealth  v.  1  Bush 
(Ky.)  59,  432,  433 


TABLE   OF    CASES. 


XXV 


Section 
Bradley,  Byan  v.  Taylor  Law  &  Eq. 

(Nor.  Car.)  77,  435 

Bradley  v.  Richardson,  23  Vt.  720,  57 
Bradley,   Lewis  v.    2    Ired.    Law 

(Nor.  Car.)  303,  160 

Bradley  v.  Cary,  8  Greenl.  (Me.) 

234,  160 

Bradley,  Parker  v.  2  HiU,  584,  9,  127 
Bradley,  Boyle  v.  26  Up.  Can.  C. 

P.  R.  373,  143 

Bradley  v.  Burwell,  3  Denio,  61, 

248,  257 
Bradley,  Derossett  v.  63  Nor.  Car. 

17,  245 

Bradley  v.  Kesee,  5  Cold.  (Tenn.) 

223,  360 

Bradley,  Seaver  v.  6  Greenl.  (Me.) 

60,  174 
Bradley,  McKnight  v.  10  Rich  Eq. 

(So.  Car.)  557,  193 

Bradford,  Scott  v.  5  Port.  (Ala.) 

443,  606 

Bradford,  Jones  v.  25  Ind.  305,  250 
Bradford  v.  Consaulus,   3  Cowen, 

128,  431 

Bradford,  Admr.  v.  Marvin,  2  Fla. 

403,  276 

Bradford,  Sawyer  v.  6  Ala.  572,  382 
Bradford,  Hawley  v.  9  Paige,  200, 

22,  148 
Brady  v.  Reynolds,  13  Cal.  31,  341 

Brady  v.  Peiper,  1  Hdton  (N.  Y.) 

61,  352 
Brainard  v.  Reynolds,  36  Vt.  614,  83 
Brainard  v.  Jones,  18  New  York, 

35,  93 

Brant  t'.  Green,  6  Leigh  (Va.)  16,  76 
Brandt,  Sharman  v.  40  Law  Jour. 

(N.  S.)  312,  76 

Bray,  Moore  v.  10  Pa.  St.  619,  269 
Bray,  Born  v.  51  Ind.  555,  46 

Bradner  v.  Garrett,  19  La.  (Curry) 

455,  17 

Bramwell  v.  Earner,    1  Taunton, 

427,  439 

Bramhall,  Hoy  v.  4  C.  E.  Green 

(N.  J.)  563,  21 

Bradshaw,   McDonald  v.  2  Kelly 

(Ga.)  248,  458 


Section 
Bradshaw,  State  v.  10  Iredell  Law 

(Nor.  Car.)  229,  473 

Braught  v.  Grilfith,  16  Iowa,  26,  264 
Braman  r.  Howk,  1  Blackf.  Ind. 

392,  309 

Brackett  r.  Rich,  23  Minn.  485,  83,  169 
Bradwell  v.  Spencer,  16  Ga.  578,  533 
Bradbear,   Blagden  v.   12  Vesey, 

466,  76 

Bradbury  v.  Morgan,    1   Hurl.    & 

Colt.  219,  113 

Brandenburg  v.  Flynn's  Exr.  12  B. 

Mon.  (Ky.)397,  227 

Brandon  v.  Medley,  1   Jones'   Eq. 

(Nor.  Car.)  313,  235 

Brawer,   Chamberlin    v.    8    Bush 

(Ky.)  561,  358 

Bragg  V.  Shain,  49  Cal.  131,  345 

Braley  v.  Boomer,  116  Mass.,  527,  409 
Brackenridge,   Lewis  v.   1  Blackf. 

(Ind.)  112,  434 

Brassfield,  Commonwealth  v.  7  B. 

Mon  (Ky.)  447,  518 

Braton  v.  Townsee,  12  Iowa,  346,  487 
Brazier  v.  Clark,  5  Pick.  96.  498 

Bremridge,  Evans  v.  8  De    Ges. 

Macn.  &  Gor.  100,  349 

Bremridge,    Evans    v.  2    Kay    & 

Johns.  174,  349 

Breese,   First    National  Bank    of 

Fort  Dodge  v.  39  Iowa,  640,  92 

Breese  v.  Schuler,  48  111.  329,  203 

Breckinridge    v.   Taylor,   5    Dana 

(Ky.)  110,  221,  247,  252";  529 

Breden,  County  of  Fontenac  v.  17 

Grant's  Ch.  R.  645,  450,  474 

Breed  v.  Hillhouse,  7Ct.  523,    8,  164 

175 
Brengle  v.  Bushey,  40  Md.  141,  320 
Brengle,   Creager    v.   5  Harris   & 

Johns.  (Ind.)  234,  281 

Brettel  v.  Wdliams,  4  Wels.  Hurl. 

&  Gor.  623,  10,  66,  73 

Breedlove,  Bogarth  v.  75  111.  561,  333 
Brenner,  Ray  v.  12  Kansas,  105,  392 
Brent  v.  Green,  6  Leigh  (Va.)  32,  76 
Brennan,  Stinson  v.   Cheves  Law 

(So.  Car.)  15,  184 

Breslauer,  Allen  v.  8  Cal.  552,  437 


XXYl 


TABLE   OF   CASES. 


Section 
Cresler  v.  Pendell,  12  Mich.  224,  62 
Brett,  Wood  v.  9  Grant's  Ch.  R. 

452,  123 

Brewer  t-.  Knapp,  1  Pick.  332,  90 

Brewer  v.  Franklin  Mills,  42  New 

Hamp.  292,  264 

Brewer,  Ladd  v.  17  Kansas,  204,      417 
Brewster,  Lewis  v.  2  McLean,  21, 

172,  174 
Brewster,  Worthan  v.  30  Ga.  112,  308 
Brewster  v.  Silence,  8  New  York, 

207,  70,  74 

Brevard  r.  Wylie,    1   Richardson 

Law  (So.  Car'.)  38,  526 

Brevard,  Mushat  v.  4  Dev.  (Nor. 

Car.)  73,  38 

Brevard,  Lang  v.  3  Strob.  Eq.  (So. 

(Car.)  59,  389 

Brej^ogle,  People  v.  17  Cal.  504,      127 
Briant,  Claflin  v.  58  Ga.  414,  157 

Bridgham,  Hunt  v.  2  Pick.  581, 

120,  296 
Bridges  v.  PhUlips,  17  Texas,  128,  129 
Bridge,  Bigelow  v.  8  Mass.  275,  140 
Briggs  V.  Boyd,  37  Vt.  534, 

95,  225,  247 
Briggs  V.  Law,  4  Johns.  Ch.  22,  352 
Briggs,  Whipple  v.  28  Vt.  65,  "  179 
Briggs,  Whipple  v.  30  Vt.  Ill,  197 
Briggs,  Baker  v.  8  Pick.  122,  48,  151 
153,  209,  211,  370 
Briggs,  Gleason  v.  28  Vt.  135,  48 

Briggs  V.  Evans.  1  E.  D.  Smith, 

(N.  Y.)  192,  63 

Brick  V.  Freehold  National  Bank- 
ing Co.,  8  Vroom,  (N.  J.)  307,      385 
Brick  ads.  The  Freehold  National 

Banking  Co.,   8  Vroom  (N.  J.) 

307,  384 

Brickhead  v.  Brown,  5  Hill  (N.  Y.) 

634,  345 

Brickhead  v.  Brown,  2  Denio,  375,  345 
Brickwood  v.   Anniss,    5    Taunt. 

614,  425 

Brickinden,  Tolhurst  v.  Cro.  Jac. 

250,  8 

Brickett,  Commonwealth  v.  8  Pick. 

138,  427 

Brink,  Sears  v.  8  Johns.  210,  68 


Section 
Brinkerhoff,  Parks  v.  2  Hill  (N. 

Y.)  663,  15 

Brillhart,  McConuell  r.  17  111.  354, 

75,  76 
Brinkard,  Shaw  v.  10  Lid.  227,  310 
Brinker,  Woolworth  v.  11  Ohio  St. 


593, 


314,  325 


Brinson  v.  Thomas,  2   Jones  Eq. 

(Nor.  Car.)  414,  277 

Brinagar's  Admr.  v.  Phillips,  1  B. 

Mon.  (Ky.)  283,  296 

Bright  V.    McKnight,     1     Sneed, 

(Ten.)  158,  165 

BrigLam  v.  Wentworth,  11  Cush. 

123,  346 

Brinsley,  Prescott  v.  6  Cush.  233,  95 
Briley  v.  Sugg,  1  Dev.  &  Batt.  Eq. 

(Nor.  Car.)  366,  272 

Brien  v.  Smith,   9  Watts  &  Serg. 

(Pa.)  78,  275 

Bristow  t\  Brown,  18   Irish  Com. 

Law.  Rep.  201,  216 

Briscoe,  Givens  v.   3  J.  J.   Marsh 

(Ky.)  529,  218,  311 

Briscoe,  Huddlestone  v.   11  Vesey, 

583,  66, 75 

Brisendine  v.  Martin,  1   Ired.  Law 

(Nor.  Car.)  286,  249 

Brisbin,  County  Co.  of  Ramsey  Co. 

V.  17  Minn.  451,  445 

Britton  V.  Dierker,  46  Mo.  591,  331 
Britton,  Ellett  v.  10  Tex.  208,  68 

Broadbent,  Liversidge  v.  4  Hurl. 

&  Nor.  603,  •  52 

Brobst  r.  SkUlen,  16  Ohio,  St.  382,  458 
Brock,  Selser  v.  3  Ohio,  St.  302, 

331,  358 
Brock,  Parham  Sew.  Mach.  Co.  v. 

113  Mass,  194,  94,  98 

Brock,  Kinyon  v.  72  Nor.  Car.  554,  85 
Brodie  v.  St.  Paul,  1  Vesey,  Jr.  326,  66 
Brooks,   Harris  v.   21    Pick.    195, 

17,  46,  211 
Brooks  V.  Wright  13  Allen,  72,  304 
Brooks,  Haigh  v.  10  Adol.  &  EU. 

309,  72 

Brooks,  Fowler  v.  13  New  Hamp. 

240,  300,  307 

Brooks,  Chace  v.  5  Cush.  43,  297 


TABLE   OF   CASES. 


XXVll 


Section 
Brooks  V.  Carter,  36  Ala.  682,  206 

Brooks,  Boyd  v.  34  Beavan,  7,  190 

Brooks,  York  Co.  M.  F.  Ins.  Co.  v. 

51  Me.  506,  355,  358 

Brooks  V.  Brooke,  12  Gill  &  Johns. 

(Md.)  306,  118 

Brooks  V.  Shepherd,  4  Bibb.  (Ky.) 

572,  421 

Brooks  V.  Governor,  17  Ala.  806,  456 
Brooke  Wynn  v.  5  Rawle  (Pa.)  106,  187 
Brookins  v.  Shumway,  18  Wis.  98,  312 
Brookshire,  Landrum  v.  1  Stewart 

(Ala.)  252,  181 

Brockett  v.   Martin,    11    Kansas, 

378,  481 

Brown,  State  v.  11  Ired.  Law  (Nor. 

Car.)  141,  484 

Brown,  Latham  v.  16  Iowa,  118,  481 
Brown,  Brown  v.  17  Ind.  475,  513 

Brown  v.  Brown,  47  Mo.  130,  9 

Brown,  Gray  v.  1  Richardson  Law 

(So.  Car.)  351,  493 

Brown  v.  Lattimore,  17  Cal.  93,  460 
Brown  v.  Phipps,  6  Smedes  &  Mar. 

(Miss.)  51,  454 

Brown,  Johnson  v.  51  Ga.  498,  97 

Brown,  Crapo  v.  40  Iowa,  487,  111 

Brown,   Risley  v.  67  New  York, 

160,  117 

Brown  v.  Ayer,  24  Ga.  288,  121 

Brown  v.  Curtiss,  2  New  York,  225, 

53,86 
Brown  v.  Burrows,  2  Blatchford, 

340,  93 

Brown  v.  Taber,  5  Wend.  566,  95 

Brown  v.  Strait,  19  111.  nS,  52 

Brown  v.  Grover,  6  Bush  (Ky.)  1,  536 
Brown,     People    v.     2    Douglass 

(Mich.)  9,  335 

Brown,  Boalt  v.  13  Ohio  St.  364,  334 
Brown,  Brickhead  v.  5  Hill  (N.  Y.) 

634,  96,  345 

Brown,  Brickhead  v.  2  Denio,  375, 

96,  345 
Brown,  Blest  v.  4  De  Ges,  Fish  & 

Jones,  367;  Id.  3  Giffard,  450,      348 
Brown,  Canal  &  Banking  Co.  v.  4 

La.  An.  545,  352,355 

Brown  v.  Ray,  18  New  Hamp.  102,  233 


Section 
Brown    v.     McDonald,     8    Yerg. 

(Tenn.)  158,  244 

Brown,  Yancey  v.  3  Sneed  (Tenn.) 

89,  167 

Brown,  Cox  v.  6  Jones  Law  (Nor. 

Car.)  100,  168 

Brown,  Dunbar  v.  4  McLean,  166,  168 
Brown,    Ten  Eyck    v.    3    Pinncy 

(Wis.)  452,  .  35,  116,  170 

Brown,  Wolfe  v.  5  Ohio  St.  304,  173 
Brown  v.  Kidd,  34  Miss.  291,  194 

Brown,  Foote  v.  2  McLean,  396,  168 
Brown,  Beal  v.  13  Allen,  114,  196 

Brown  v.  Wright,  7  T.  B.  Monroe 

(Ky.)396,  201 

Brown,  Haden  v.  18  Ala.  641,  206 

Bro\vn,  Halstead  v.  17  Ind.  202,  208 
Brown,  Bristow  v.  13  Irish  Com. 

Law  Rep.  201,  216 

Brown  v.  Exrs.  of  Riggins,  3  Kelly, 

(Ga.)  405,  27,  378,  382 

Brown  v.  Gibbons,  37  Iowa,  654,  372 
Brown,  Halstead  v.  17  Ind.  202,  308 
Brown  v.  Roberts,  14  La.  An.  256,  312 
Brown,  Jones  v,  11  Ohio  St.  601,  315 
Brown,  Christner  ».  16  Iowa,  130, 21, 305 
Brown,    Gray's  Exrs.  v.   22  Ala. 

262,  202, 299 

Brown,  Exrs.  of  Riggins  v.  12  Ga. 

271,  299 

Brown,  Merrimack   County  Bank 

V.  12  New  Hamp.  320,  286,  299,  300 
Brown  v.  Haggerty,  26  111.  469, 17,  293 
Brown,  Haden  v.  18  Ala.  641,  296 

Brown,   Wilson  v.  2  Beasley  (N. 

J.)  277,  260 

Brown,  Gossin  v.  11  Pa.  St.  527,  275 
Brown,  Boatt  v.  13  Ohio  St.  364,  331 
Brown  v.  Lang,  4  Ala.  50,  278 

Brown,  Birckhead  v.  5  Hill,  634,  67 
Brown,  Hurley  v.  98  Mass.  545,  67 

Brown,   Church  v.  21-  New  York, 

315,  70 

Brown,  Church  v.  29  Barb.  (N.Y.) 

486,  71 

Brown,  Hunt  v.  5  Hill,  145,  74 

Brown,  Ellis  v.   6  Barb,   (N.  Y.) 

282,  150 

Brown,  Lonsdale  v.  4  Wash.  148,        8 


XXVlll 


TABLE   OF    CASES. 


Section 
Brown,  Kinloch  v.  1  Rich.  (So.  Car.) 

223,  64 

Brown,  Kinloch  v.  2  Spear's  Law, 

(So.  Car.)  284,  Gl 

Brown,  Leroux  v.  12  Com.  B.  801,  38 
Brown  v.  Adams,  1   Stew.   (Ala.) 

61,  47 

Brown,  Curtis  v.  5  Cush.  (Mass.) 

488,  48 

Brown,  State  v.  16  Iowa,  314,  433,  435 
Brown,  Seeley  v.  14  Pick.  177,  435 

Brown,  Banks  v.  4  Yerger  (Tenn.) 

198,  396 

Brown  v.  Dillahunty,  4  Smedes  & 

Alar.  (Miss.)  713,  429 

Brown,  Pike  v.  7  Cush.  133,  39,  58 

Brown  v.  Ayer,  24  Ga.  288,  27 

Bro^vn,  Curtis  v.  5  Cush.  488,  50 

Browne  v.  Carr,  2  Russell,  600,  126 
Browne  v.  Carr,  7  Bing-.  508,  373 

Browne  v.  Carr,  5  Moore  &  Paynes, 

497,  374 

Browder,   Thomas    v.    33   Texas, 

783,  483 

Brower,  Salem  Manf.  Co,  v.  4  Jones 

Law  (Nor.  Car.)  429,  173 

Brownell,  Atlas  Bank  v.  9  Rhode 

Is.  168,  366,  368,  519 

Browning  v.  Fountain,  1  Duvall, 

(Ky.)  13,  94 

Brownelow   v.  Forbes,   2    Johns. 

101,  426 

Broyles  v.  Blair,   7  Yerg.  (Tenn.) 

279,  418 

Broome  v.  United  States,  15  How- 
ard (U.  S.)  143,  450 
Broom,  Oldham  v.  28  Ohio  St.  41,  230 
Bronaugh  v.  Neal,  1  Robinson  (La  ) 

23,  203 

Broughton  v.  Robinson,   11  Ala. 

922,  259 

Broussard,   Moore   v.   20    Martin, 

(La.)8N.  S.  277,  296 

Brubaker  v.  Okeson,   36  Pa.   St. 

5^9,  212 

Bruce  v.  United  States,  17  How, 

(U.  S.)  437,  30,  467 

Bruce,  Napier  v.  8  Clark  &  Fm- 

nelly,  470,  138 


Section 
Bruce  v.  Edwards,   1  Stew.  (Ala.) 

11,  17,  206 

Bruen,  Bell  v.  1  How.  (U.  S.)  169,  78 
Brugniere,  Dussol  v.  50  Cal.  456,  255 
Brummiit,  Ballard  v.  4  Strobh.  Eq. 

(So.  Car.)  171,  493 

Brtmton  v.   DuUens,    1   Foster  & 

Fin.  450,  62 

Brune,  Enders  v.  4  Randolph  (Va.) 

438,  260 

Brunei,  Gallagher  v.  6  Cowan,  346. 

69,  60 
Brush  V.  Carpenter,  6  Ind.  78,  47 

Brush  V.  Raney,  34  Ind.  416,  362 

Brutton,  Lake  v.  8  De  Gex,  Macn. 

&  Gor.  440,  267 

Bry,  McGuire  v.  3  Robinson  (La.) 

196,  314,  447,  473 

Bryant,  Babcock  v.  12  Pick.  133,  163 
Bryant,  Guardian  v.  Owen,  1  Kelly 

(Ga.)  355,  533 

Bryant,    Hamilton    v.    114   Mass. 

527,  409 

Bryant,  Hancock  v.  2  Yerg.  (Tenn.) 

476,  206,  207 

Bryant,  Laythoarp  v.  2  Bing.  (N. 

C.)  755,     •  75 

Bryant  v.  Owen,  1  Kelly  (Ga.)  355,  467 
Bryant,  Whitman  v.  49  Vt.  512,  61 
Bryant  v.  Berry,  6  Cal.  394,  10,  148 
Bryant  v.  Hunt,  4  Sneed,  543,  67 

Bryon,  People  v.  3  Johns.  Cas.  53.  490 
Bryan  v.  Bradley,Taylor  Law  &  Eq. 

(Nor.  Car.)  77,  435 

Bryan,  Heart  v.   2  Devereux  Eq. 

(Nor.  Car.)  147,  260 

Buchanan,    Moale   v.    11    Gill  & 

Johns.  (Md.)  314,  66 

Buchanan  v.  Clark,  10  Gratt.  (Va.) 

164,  262 

Buchanan  v.  Bordley,  4  Harr.  & 

McHcn.  (Md.)  41,  296 

Buchanan,  Bennett  v.  3  Ind.  47,  181 
Bucknell,  Maule  v.  50  Pa.  St.  39,  55 
Bucbtel,  Rowe  v.  13  Ind.  381,  506 

Buckner  v.   Archer,    1  McMullan, 

Law  (So.  Car.)  85,  532 

Buckner  v.  Clark's  Exr.  6  Bush. 

168,  6 


TABLE   OF   CASES. 


XXIX 


Section 
Buckner's  Admr.   v.  Stewart,   34 

Ala.  529,  254 

Buckner  v.  Morris,   2  J.  J.  Marsli, 

(Ky.)  121,  273 

Buckmyr  r.  Damall,  6  Mod.  248, 

Id.  2  Ld.  Ptaym.  1085;  Id.  1  Salk 

27,  40,  42 

Buckley  v.  Beardslee,  2  South.  572,  68 
Bucklin,  Barber  v.   2    Denio  45, 

52,  55,  58 
Bucklen  v.  Huff,  53  Ind.  474,  298 

Buck  r.  Sanders,  1  Dana(Ky.)  187,  204 
Buckmaster  v.  Harrop,  7  Vesey, 

341,  76 

Buckalew  v.  Smith,  44  Ala.  6-38,      206 
Buckman,   Goodman  v.  11   Iowa, 

303,  84 

Buckhannon,  Thompson  v.  2  J.  J. 

Marsh.  (Ky.)  416,  5,12 

Budd,  Shinn  v.  1  McCarter  (N.  J.) 

234,  260 

Buel,  Barker  v.  5  Gushing,  519,       213 
Buel  V.  Gordon,  6  Johns.  126,  189 

Buford  V.  Francisco,  3  Dana  (Ky.) 

68,  195 

Bugg,  State  v.  C.  Robinson  (La.) 

63,  121 

Buie  V.  Wooten,  7  Jones  Law  (Nor. 

Car.)  441,  424 

Bull  V.  Bliss,  30  Vt.  127,  84,  168 

Bull,  Hill  V.  1  Gilmer  (Va.)       149,  296 
Bull,  Bowker  v.  1  Simons  (N.  S.) 

29,  21, 275 

BulU.  Allen,  19  Conn.  101,  17 

Bull's  Head  Bank,  McMillan  v.  32 

Ind. 11,  1,  166 

Bullock  V.  Campbell,  9  Gill  (Md.) 

182,  177 

Bullock  r.  Lloyd,   2  Car.   and  P. 

119,  46 

Bullock,   Jones    v.    3  Bibb  (Ky.) 

467,  378 

Bullock,  Grubb  v.  44  Ga.  379,  436 

Bullock  V.  Campbell,  9  Gill  (Md.) 

182,  199 

Buller,  Mortlock  v.  10  Vesey,  292,      76 
Bullard  v.  Ledbetter,  5  The   Re- 
porter (Sup.  Ct.  Ga.)  231,  211 
BuUard  v.  GHette,  1  Montana,  509,  399 


Section 
Bullitt's    Esrs.    v.     "Winstons,    1 

Munf.  (Va.)  269,  326 

Bulkeley  v.  Lord,  2^tarkie,  406,  107 
Bumcratz.  Powers  v.  12  Ohio  St. 

273,  167 

Bunting,  Draughn  v.  9  Ired.  Law 

(Nor.  Car.)  10,  47,  245 

Bunting  v.  Ricks,  2  Dev.  &  Bat. 

Eq.  (Nor.  Car.)  130,  204 

Bunker  v.  Tufts,  55  Me.  180,  179 

Bunbury,  Werner  v.  30  Mich.  201,  514 
Bundy,  Blazen  v.  15  Oliio  St.  57, 

27,  307 
Bunce  v.  Bunce,  Kirby  (Ct.)  137,  178 
Burton,  Weeks  v.  7  Vt.  67  59 

Bui-ton,  Hunt  v.  18  Ark.  188,  415 

Burton  v.  Hansford,  10  West  Va. 

470,  152,  153 

Burton,  Mitchell  v.  2  Head  (Tenn.) 

613,  383 

Burton  v.  Rutherford,  Admr.   49 

Mo.  255,  199 

Burton,  Mitchell  v.  2  Head  (Tenn.) 

613,  335 

Burton,  Ross  v.  4  Up.  Can.  Q.  B. 

R.  357,  131 

Bums,  Bank  of  Albion  v.  46  New 

York,  170,  22,  296 

Burns  v.  Huntingdon  Bank,  1  Pen. 

&  Watts  (Pa.)  395,  270 

Burns  v.  Parish,  3  B.  Mon.  (Ky.) 

8,  101,  186 

Burns  v  Parkes,  53  Ga.  61,  200 

Burns,  Cave  v.  6  Ala.  780,  246 

Bums,  Ketchell  v.  24  Wend.  450,  33 
Burr  V.  Boyer,  2  Nebraska,  265,  389 
Burrus,  Thomas  r.  23  Miss.  550,  32 
Burnham,  State  v.  44  Me.  278,  431 
Burch,  Cordle  v.  10  Gratt.  (Va.)480,  29 
Burch  V.  Watts,  37  Texas,  135,  410 
Burk  V.  Chrisman,  3  B.  Mon.  (Ky.) 

50.  276 

Burke  v.  Cruger,  8  Tes.  66,  18 

Burke,  Turton  v.  4  Wis.  119,  63 

Burke  v.  Cruger,  8  Texas,  66,  320 

Burke,  Whiting  v.  Law  Rep.   10 

Eq.  Cas.  539,  222 

Burke,  Whiting  v.  Law  Rep.  6  Ch. 

Appl.  Cas.  342,  222 


XXX 


TABLE   OF   CASES. 


Section 
Burke  v.  Glover,  21   Up.   Can.   Q. 

B.  R.  294,  416 

Burlingame,   Hartman    v.   9  Cal. 

557,  n,  208 

Burlingame,  Talmage  v.  9  Pa.  St. 

21,  311 

Burlingame,  Crist  v.  62  Barb.  (N. 

Y.)  351,  78,  133 

Burghart,  Lane  v.  1  Adol.  &  Ell. 

(N.  S.)  933,  48 

Bums  V.  Semmes,  4  Cranch  Cir. 

Ct.  702,  157 

Burrows  v.  McWhann,  1  Desaus- 

sure  Eq.  (So.  Car.)  409,  269 

Burrows,  Barber  v.  51  Cal.  404,        323 
Burrows,  Brown  v.   2  Blatcliford, 

340,  93 

Burroughs    v.    United    States,    2 

Paine,  569,  282 

Burroughs  v.  Lott,  19  Cal.  125,        252 
Burnet  v.  Courts,  5  Harr.  &  Johns. 

(Md.)  78,  292 

Burnett  v.   Henderson,  21  Texas, 

588,  445 

Burgess,  Taylor  v.  5  Hurl.  &  Nor. 

1,  296 

Burgess  t:  Dewey,  33  Vt.  618,  310 

Burkh older,  Stickler  v.  47  Pa.  St. 

476,  207 

Burdett,  Clark  v.   2  Hall  (N.  Y.) 

217,  167 

Bunvell,  Bradley  v.  3  Denio,  61, 

248,  257 
Burks  V.  Wonterline,  6  Bush  (Ky.) 

20,  363 

Bumham  v.  Cheat,  5  Up.  Can.  K. 

B.  R.  (0.  S.)  736,  255 

Bumham  v.   Gallentine,    11    Ind. 

295,  86 

Burt  V.  Homer,  5  Barb.  (N.  Y.) 

501,  82,  85 

Burt  V.  McFadden,  58  111.  479,         347 
Burgess  v.  Eve,  Law  Rep.  13  Eq. 

450,  134 

Burson  v.  Kincaid,  3  Pen.  &  Watts 

(Pa.)  57,  129 

Burchard,  Ferry  v.  21  Ct.  597,  121 

Burfoot,  Wilson  v.  2  Gratt.    (Va.) 
134,  447 


Section 
Burrell,  Ex  paHe  In  re  Robinson, 

Law  Rep.  1  Chancery  Div.  537,  218 
Burford,  Goode  v.  14  La.  An.  102,  497 
Burnell,  Groynne  v.  7  Clark  &  Fin- 
nelly,  572,  468 
Bushee  v.  Allen,  31  Vt.  631,  62 
Bushnell  v.  Beavan,  1  Bing.  N.  C. 

103,  60 

Bush,  Donley  v.  44  Texas,  1,  155 

Bush,  Dempsey  v.  18  Ohio  St.  376,  270 
Bush  V.  Stamps,  26  Miss.  463,  284 

Bush.  Clark  v.  3  Cowen  151,  93 

Bush  V.  Critchfield,  5  Ohio,  109,  112 
Butler  «.  Birkey,  13  Ohio  St.  514,  231 
Butler  V.  Butler's  Admr.,  8  West 

Va.  674,  182 

Butler  V.  Bissel,  1  Root  (Ct.)  102,    436 
Butler,  Capel  f>.  2  Simons  &  Stu- 
art, 457,  389 
Butler,   Grimes  v.   1    Bibb   (Ky.) 

192,  443 

Butler,  Guild  v.   5  The  Reporter, 

15,  374 

Butler  V.  Hamilton,  2  Desaussure 

Eq.  (So.  Car.)  226,  296 

Butler,   Knotts  v.   10  Richardson 

Eq.  (So.  Car.)  143,  113,  259 

Butler  V.  Rawson,  1  Denio,  105,  116 
Butler  V.  Sugarloaf,  6  Pa.  St.  262,  111 
Butler  V.  State,  20  Ind.  169,  458 

Bushnell  v.  Beavan,  4  Moore  & 

Scott,  622,  60 

Bushnell  v.   Church,    15  Ct.  406, 

164,  166,  520 
Bushell  V.  Beavan,  1  Bing.  N.  C. 

103,  50,  71 

Butcher  \\  Stewart,   11   Mees.    & 

Wels.  857,  48,  72 

Buss,  Pledge  v.  Johnson  (Eng.  Ch.) 

663,  348,  370 

Bushey,  Brengle  v.  40  Md.  141,  Bx'O 
Bussier  v.  Chew,  5  Phil.  (Pa.)  70, 97, 135 
Bussell,   Page  v.  2  Maule  &  Sel. 

551,  '  ■  189 

Buster,  People  v.  11  Cal.  215,  461 

Buttles,  Starling  v.  2  Ohio,  303,  506 
Byers  v.   McClanaghan,  6  Gill,  & 

Johns.  (Md.)  250,  461,  229,  256 

Byi-ne  v.  iEtna  Ins.  Co.  56  lU.  321,     82 


TABLE    OF    CASES. 


XXXI 


Section 
C.  &  A.  R.  R.  Co.  V.  Higgins,  58 

lU.  128,  102 

Caballero  v.  Slater,  14  Com.   B.  (5 

J.  Scott)  300,  70 

Cabot  Bank  v.  Morton,  4  Gray,  156,     16 
Cabot,  Hayden  v.  11  Mass.  183 

Cacly  V.  Shelden,  38  Barb.  (N.  T  ) 

10"3,  82,  83 

Cage  V.  Foster,  5  Yerg.   (Tenn.) 

261,  257 

Cahill  V.  Bigelow,  18  Pick.  369,    61,  62 
Cahn,  Heintz  v.  29  111.  308,  147 

Cain  V.  Bates,  Admr.  35  Mo.  427,     392 
Cake  V.  Lewis,  8  Pa.  St.  493,  189 

Calkins,   Fuller  v.  22  Iowa,  301, 

452,  478 
Cailleux  V.  Hall,  1  E.  D.  Smith  (N. 

Y.)  5,  52 

Calef,  McDougalv.  34  New  Hamp. 

534,  110 

Caldwell,   Boyd  v.   4    Richardson 

Law  (So.  Car.)  117,  496 

Caldwell's  Exr.  v.    McVicker,   9 

Ark.  (4  Eng.)  418,  296 

Caldwell    v.    Cans,     1     Montana, 

570,  419 

Caldwell  V.   Heitshu,   9  Watts  & 

Serg.  (Pa.)  51,  7,  361 

Caldwell,   Kenner  v.    Bailey  Eq. 

Cas.  (So.  Car.)  149,  209 

Caldwell  v.  Roberts,  1  Dana  (Ky.) 

355,  254 

Caldwell  v.  Sigoumey,  19  Ct.  37,      120 
Calhoun,  Ewins  v.  7  Vt.  79,  59 

Calhoun,   Wheatley's  Heirs  v.  12 

Leigh  (Va.)  264.  262 

Callahan  v.  Saleski,   29   Ark.  216,  398 
Calliham  v.  Tannei',  3  Robinson, 

(La.)  299,  296,  325 

Callaway  County  Court,  NoUey  v. 

11  Mo.  447,  451,  522,  535 
Callaway  County   Court,  Craig  v. 

12  Mo.  94,  120 
Calvert,  Gordon  v.  2  Simons,  253.  113 
Calvert,  Gordon  v.  4  Russell,  581,  113 
Calvert  v.  Gordon,  3  Man.  &  Ryl. 

124,  113 

Calvert  Hill  v.   1  Rich.   Eq.   (So. 
Car.)  56,  335 


Section 
Calvert  v.  London  Dock  Co.  2  Keen, 

638,  345 

Calvert,  Warre  v.  7  Adol.  &  Ell. 

143,  102 

Calvert,  Warre  v.  2  Nev.  &  Per. 

126,  102 

Calvin  v.  Wiggam,  27  Ind.  489,  309 
Calvo  V.  Davies,  8  Hun  (N.  Y.) 

222,  24 

Cameron  v.  Boulton,  9  Up.  Can. 

C.  P.  R.  537,  244 

Cameron  v.  Clark,  11  Ala.  259,  49 

Cameron  v.  Justices,  1  KeUy  (Ga.) 

36,  494 

Cameron,  Kerr  v.  19  Up.  Can.  Q. 

B.  R.  366,  300 

Camden  v.  McKoy,  3  Scam.  (111.) 

437,  147 

CampbeU  v.  Baker,  46  Pa.  St.  243, 

86,  297 
Campbell,  Boehm  v.  3  Moore,  15,  70 
Campbell,  Boehm  v.  8  Taunt.  679,  70 
CampbeU,  Bullock  v.  9  Gill  (Md.) 

182,  177,  199 

Campbell,    Chaffin    v.     4    Sneed, 

(Tenn.)  184,  '     227 

Campbell  v.  Findley,  3  Humph.  330,  68 
Campbell  v.  Gates,  17  Ind.  126,  352 
Campbell,  Keaton's  Distributees  v. 

2  Humph.  (Tenn.)  224,  502 

Campbell,  Kee  v.  27  Mich.  497,  229 
Campbell  v.  Lacock,  40  Pa.  St.  448,  34 
Campbell  v.  Macomb,  4  Johns.  Ch. 

R.  534,  192 

Campbell,  McKee  v.  27  Mich.  497,  187 
Campbell,  Moore  v.  36  Vt.  361,  264 
Campbell  v.  Moulton,  30  Vt.  667,  94 
Campbell,   Newman  v.   Martin  & 

Yerg.  (Tenn.)  63,  515 

Campbell,    Stevens     v.     6    Iowa 

(Clarke)  538,  504 

Campbell    v.     Tate,    7     Lansing, 

(N.  Y.)  370,  17 

Campbell,  Underwood  i\  14  New 

Hamp.  393,  68 

Campbell,  Waller  v.  25  Ala.  544,  246 
Campbell,  Warner  v.  26  111.  282,  305 
Campbell,  Wilson  v.  1  Scam.  (111.) 

493,  82 


XXXll 


TABLE    OF    CASES. 


Section 
Camp  V.  Bostwick,  20  Ohio  St.  337,  259 
Camp  V.  Howell,  37  Ga.  312.  309 

Cammack,  Norton  v.  10  La.  An.  10,  405 
Cammeyer,  Rucker  v.  1  Esp.  105,  76 
Campau  v.  Seeley,  30  Mich.  57,  425 
Canby  v.    Griffin,     3    Harrington 

(Del.)  333,  431 

Canal  and  Banking  Co.  v.  Brown, 

4  La.  An.  545,  355,  522 

Canan,  Commissioners  v.  2  Watts 

(Pa.)  107,  340 

Candee,  Castle  v.  16  Conn.  223,  148 
Cannell  v.  Crawford  Co.  59  Pa.  St. 

196,  457 

Cannon,  Gai-y  v.  3  Ired.  Eq.  (Nor. 

Car.)  64,  204 

Cannon,  Gibbs  v.  9  Serg.  &  Rawle 

(Pa.)  198,  173,  174 

Capel  V.  Butler,  2  Simons  &  Stuart, 

457,  389 

Capen,  Gricney  v.  72  111.  11,  92 

Capen,  Melendy  v.  120  Mass.  222,  132 
Caperton  v.  Gray.  4  Yerg.  (Tenn.) 

563,  61 

Cardell  v.  McNeil,  21  New  York, 

336,  53 

Card,  Carr  v.  34,  Mo.  513,  82 

Carey  v.  State,  34  Ind.  105,  453 

Carhartt,  Barman  v.  10  Mich.  338,  83 
Carkin  v.   Savory,    14  Gray,  528, 

102,  312 
Carlisle,  Harris  v.  12  Ohio,  169,  239 
Carlisle  v.  Wilkins'  Admr.  51  Ala. 

371,  283 

Carlile,    Ordinaiy  r.   1  McMuUen, 

Law  (So.  Car.)  100,  532 

Carlton,   White  v.  52    Ind.   371, 

236,  249 
Carleton,  State  v.  1  Gill.  (Md.)  249,  324 
Carleton,  Savage  Admr.  v.  33  Ala. 

443,  504 

Carlos  V.  Ansley,  8  Ala.  900,  195 

Cannan  v.  Elledge,  40  Iowa,  409.  164 
Carman  r.  Noble,  9  Pa.  St.  366, 

190  213, 
Carnegie     v.    Morrison,     2    Met. 

(Mass.)  381,  67 

Carney  v.   Walden,    16    B.   Mon. 
(Ky.)  388,  111 


Section 
Carrington  v.  Anderson,  5  Munf. 

(Va.)  32,  76 

Carpenter  v.  Bowen,  42  Miss.  28,  282 
Carpenter,  Brush  v.  6  Ind.  78,  47 

Carpenter  v.  Devon,  6  Ala.  718,  27 
Carpenter  v.  Doody,  1  Hilton  (N. 

Y.)  465,  485,  487 

Carpenter,  First  National  Bank  of 

Dubuque  v.  41  Iowa,  518,  174 

Carpenter,  HubbeU  v.  5  New  York, 

171,  123 

Cai-penter  v.  Kelly,  9   Ohio,  106, 

235,  257 
Carpenter,  Kennedy  v.  2  Wharton 

(Pa.)  344,  117,  245 

Carpenter  v.  King,   9   Met.   511, 

17,  27,  211 
Carpenter,  People  ij.  7  Cal.  402,  439 
Carpenter  v.   Turrell,    100    Mass. 

450,  409 

Carpenter,  Van  Wart  v.  21   Up. 

Can.  Q.  B.  R.  320  96,  97 

Carpenter  v.  Wall,  4  Dev.  &  Batt. 

(Nor.  Car.)  144,  53 

Carr,  Browne  v.  5  Mooi-e  &  Payne, 

497,  374 

Carr,  Browne  v.  7  Bing.  508,  374 

Carr,  Browne  v.  2  Russell,  600,  126 
Carr  v.  Card,  34  Mo.  513,  82 

Carr  v.  Howard,  8  Blackf.  (Ind.) 

190,  208,  327 

Carr,  Vcazie  r.  3  Allen,  14,  312 

Carrington  r.  Carson,    Conference 

Reports  (Nor.  Car.)  216,  253 

Carroll,  Corbitt  v.  50  Ala.  315,  445 
Carroll,  Holliman  v.  27  Texas,  23,  484 
Carroll  v.  Nixon,  4  Watts  &  Serg. 

(Pa.)  517,  213 

Carroll,  Waters  r.  9  Yerger  (Tenn.) 

102,  453 

CarroU  v.  Weld,  13  111.  682,  147,  153 
Carson,  Carrington  v.  Conference 

Reports  (Nor.  Car.)  216,  253 

Carson,  Globe  Mutual  Ins.  Co.  v. 

31  Mo.  218,  319 

Carson  v.   Hill,  1  McMullan  Law 

(So.  Car.)  76,  356 

Carter  v.  Black,  4  Dev.  &  Bat.  Law 

(Nor.  Car.)  425,  180 


TABLE    OF    CASES. 


XXXIU 


Section 
Carter,  Brooks  v.  36  Ala.  682,  206 

Carter's  Exrs.  Catlett  v.  2  Munf. 

(Va.)  24.  494 

Carter,  Halliburton  v.  55  Mo.  435,  189 
Carter,  O'Neill  v.  9  Up.  Can.  Q.  B. 

R.  470,  "^  347 

Carter,  Schultz  v.  Speers  Eq.  (So. 

Car.)  533,  273 

Carter,  Spencer  v.  4  Jones  Law, 

(Nor.  Car.)  287,  175 

Carter,  Rice  v.  11  Ired.  (Nor.  Car.) 

298,  52 

Carter,  Woodbum  v.  50  Ind.  376,  305 
Cartaplian,  Purvis  r.  73  Nor.  Car. 

575,  22 

Carstairs  v.  RoUeston,  1  Marshall, 

207,  124 

Caruthers  v.  Dean,  11  Smedes  & 

Mar.  (Miss.)  178,  ,382 

Carville  r.  Crane,  5  Hill,  483,  45,  60 
Cary,  Bradley  v.  8  Greenl.  (Me.) 

234,  160 

Case  V.  Howard,  41  Iowa,  479,  165,  318 
Case  V.  Luse,  28  Iowa,  527,  87 

Case,  White  v.  13  Wend.  543,  83,  85 
Cashin  v.  Perth,  7  Grant's  Ch.  & 

Appl.  Rep.  340,  367 

Castle  V.  Beardsley,  10  Hun,  343,  68 
Castle  V.  Candee,  16  Conn.  223,  148 
Caston  V.  Dunlap,  Richardson  Eq. 

Cas.  (So.  Car.)  77,  208 

Casoni  t;.  Jerome,  58  New  York, 

315,  .353,  496 

Cassilly,  Clements  r.  4  La.  An.  380,  349 
Castling   v.   Aubert,   2  East,  325, 

40,  51,  56 
Caskey,  Dixon  v.  18  Ala.  97,  458 

Casky  v.  Haviland,  13  Ala.  314,  521 
Cassitys  v.  Robinson,  8  B.    Mon. 

(Ky.)  279,  518 

Cater,  Redhead  v.  1  Starkie,  12,  43 
Cates  V.  Kittrell,  7  Heiskell  (Tenn.) 

606,  84 

Cates,  Simmons  v.  56  Ga.  609.  286 

Cathcart  v.  Gibson,  1  Richardson 

Law  (So.  Car.)  10,  225 

Cathcart  r.  Robinson,  5  Peters,  264,  352 
Catlett  V.  Carter's  Exrs.   2  Munf. 

(Va.)  24,  494 

C 


Section 
Catlin,  Perkins  r.  11  Ct.  213,  148,  1-53 
Caton  V.    Shaw,   2  Harris  &  Gill 

(Md.)  13,  165 

Catton  V.  Simpson,  8  Adol.  &  Ell. 

136,  198 

Caulfield,  Delacour  v.  1  Irish  Com. 

Law.  Rep.  669,  459 

Cave  V.  Burns,  6  Ala.  780,  246 

Cave,  Patterson  v.  61  Mo.  439,  128 
Cecil,  Dills  v.  4  Bush,  (Ky.)  579,  382 
Cecil  V.  Earty,  10  Gratt.  (Va.)  198, 

29,  444 
Cenas,  Perkins  v.  15  La.  An.  60,  457 
Central  Savings  Bank  v.  Shine,  48 

Mo.  456,  160 

Chadney,  Cuxon  v.  2  Barn.  &  Cres. 

591,  -  52 

Chaftee  v.  Jones,  19  Pick.  260, 

151,  223,  252,  257 
Chaffee  v.  Memphis,  C.  &  M.  W. 

R.  R.  Co.  64  Mo.  193,  il51 

Chaffin    r.    Campbell,    4    Sneed, 

(Tenn.)  184,  227 

Chairman  of  Schools  v.  Daniel,  6 

Jones  Law  (Nor.  Car.)  444,  146 

Chalker,  Watrous  r.  7  Conn.  224,      38 
Chalaron  v.  McFarlane,  5  La.  (Cur- 
ry) 227,  356 
Chalmers,  People  v.  60  New  York, 

154,  79, 108 

Chambers  v.  Cochran,  18  Iowa,  159, 

27,  216 
Chambers,  Haddens  v.    2  Dallas, 

(Pa.)  236,  189 

Chambers,  Kerns  v.   3  Ired.   Eq. 

(Nor.  Car.)  576,  238 

Chambers,  McDowell  v.  1  Strobh. 

Eq.  (So.  Car.)  347,  66 

Chambers  v.  Robbins,  28  Conn.  544,  54 
Chambers  v.  Waters,  7  Cal.  390,  420 
Chambliss,  Hunt  v.  7  Smedes  & 

Mar.  (Miss.)  532,  223,  226 

Chamberlain  v.    Godfrey,    36  Vt. 

380,  524 

Chamberlain  v.  Hopps,  8  Vt.  94,  14 
Chamberlain,  Lucas  v.  8  B.   Mon. 

(Ky.)  276,  46 

Chamberlin  v.  Brawer,  3  Bush  (Ky.) 

501,  358 


XXXIV 


TABLE   OF   CASES. 


Section 
Chamberlin,  Hammond  v.  26  Vt. 

406,  84 

Champion  v.  Griffith,  13  Ohio,  228,  147 

148 
Champion  v.  Plummer,  1  Bos.   & 

Pul.  (N.  R.)  252,  67 

Charaplain,  Sluby  v.  4  Johns.  461,  197 
Chanipomier  v.  Washington,  2  La. 

An.  1013,  404 

Chandler    v.  Westfall,   30  Texas, 

475,  147,  153 

Chandley,  Cuxon  v.  8  Bam.  &  Ores. 

591,  52 

Chappee  v.  Thomas,  5  Mich.  53,  514 
Chaplin,  Roche  v.   1  Bailey,  (So. 

Car.)  419,  44 

Chapin  v.  Lapham,  20  Pick.  467,  41,  44 
Chapin  v.  Merrill,  4  Wend.  657,  46 
Chapman  v.  Bluck,  5  Scott,  515,  66 
Chapman,  Chilton  v.  13  Mo.  470,  236 
Chapman    v.    Commonwealth,    25 

Gratt.  (Va.)  791,  294 

Chapman,  Johnston  v.  3  Pen.   & 

Watts  (Pa.)  18,  84,  85 

Chapman  v.  McGrew,  20  111.  101,  336 
Chapman,    Peabody    v.    20    New 

Hamp.  418,  179 

Chapman  i'.  Ross,  12  Leigh  (Va.) 

565,  46 

Chapman  v.  Sutton,  2  Com.  B.  634,  9 
Chapman  v.  Todd,  60  Me.  282,  383 
Charles,  Foster  v.  6  Bing.  396,  59 

Charles  v.  Haskms,  11  Iowa,  329, 

484,  488 
Chace  v.  Brooks,  5  Cush.  43,  297 

Chace,  Hawkins  v.  19  Pick.  502,  75,  76 
Chase  v.  Berand,  29  Cal.  138,  400 

Chase  v.  Day,  17  Johns.  114,  62,  63 
Chase,  Goodman  v.  1  Bam.  &  Aid. 

297,  48,  68 

Chase  v.  Hathom,  61  Me.  505,  95,  127 
Chase,    Hereford    v.    1    Robinson 

(La.)  212,  371 

Chase  v.  Lowell,  7  Gray,  33,  66 

Chase   v.   McDonald,   7  Harris  & 

Johns.  (Md.)  160,  79 

Chasten,  West  v.  12  Fla.  315,  23,  192 
Chater  v.  Beckett,  7  Term  R.  201, 

38,  50 


Section 
Chatterton,  Nickerson  v.  7  Cal.  568,  420 
Cheek  v.  Glass,  3  Ind.  286,  305 

Cheek,  Shortrede  v.  1  Adol.  &  Ell. 

57,  70,  72 

Chelmsford     Co.    v.     Demarest,  7 

Gray,  1,  140,  518 

Cheeney  v.  Cook,  7  Wis.  413,  70 

Cheney,  Williams  v.  3  Gray,  215,     191 
Cherry  v.  Homing,  4  Wels.  Hurl. 

&  Gor.  631,  75 

Cherry  v.  Monro,  2  Barb.  Ch.  R. 

618,  24 

Chesney,  Bacon  v.  1  Starkie,  192     361 
Chesli're,    Leary  v.   8    Jones   Eq. 

(Nor.  Car.)  170,  233 

Cheeseborough,   Aiken  v.   1    Hill 

Law  (So.  Car.)  172,  53 

Cheeseman,  United  States  t?.  8  Saw- 
yer, 424,  142 
Chester  v.  Bank  of  Kingston,  16 

New  York,  336,  293,  372 

Chethenham  Fire  Brick  Co.  v.  Cook, 

44  Mo.  29,  518 

Chew,  Bussier  v.  6  Phil.  (Pa.)  70, 

97,  135 
Chickering,   Dedham    Bank    v.   3 

Pick.  335,  145 

Chickering,    Dedham    Bank  v.  4 

Pick.  314,  479 

Chichester  v.  Mason,  7  Leigh  (Va.) 

244,  388 

Chicago  &  N.  W.  R.  R.  Co.  Smith 

V.  18  Wis.  17,  106 

Chick,  Anderson  v.  Bailey  Eq.  (So. 

Car.)  118,  76 

Chickasaw  County  v.  Pitcher,  36 

Iowa,  593,  316 

Child,  Glidden  v.  122  Mass.  433,        62 
Child  V.  Powder  Works,  44  New 

Hamp.  354,  191 

Childs  r.  Barnum,  11  Barb.  (N.  Y.) 

14,  70 

Childs,  Jones  v.  8  Nevada,  121,        190 
Childs,    Rankin    v.    9    Mo.    665, 

157,  159,  175 
Childress,  Ferguson  v.  9  Humph. 

(Tenn.)  382,  825 

Childress,  Macey  v.  2  Tenn.  Ch.  R. 

(Cooper,)  438,  47,  77 


TABLE    OF    CASES. 


XXXV 


Section 
Childress,    Miller    v.    2    Humph. 

(Tenn.)  320,  511 

Childress,  Ruddell  v.  31  Ark.  511,  504 
Chilton  V.  Robbins,  4  Ala.  223,  302 
Chipman  v.  Fambro,  16  Ark.  291,  527 
Chisholm,  Lowndes  v.   2  McCord 

Eq.  (So.  Car.)  455,  263 

Chisholm,  People  v.  8  Cal.  29,  378 

Chisholm,  Pittman  v.  43  Ga.  442,  84 
Chittenden,  Nurre  v.  56  Ind.  462,  225 
Choat,  Burnham,  v.  5  Up.  Can.  K. 

B.  R.  (0.  S.)  736,  255 

Choate  v.  Arrington,  116  Mass.  552, 449 
Choppin  V.  Gobbold,  13  La.  An.  238, 48 
Chorlton,  Newton  t^.  2  Drewry,  333, 370 
Choteau  v.  Jones,  11  111.  300,  177 

Choteau  v.  Thompson,  3  Ohio  St. 

424,  188 

Chretien,  Andrus  v.  7  La.  0.  S.  (4  • 

Curry)  318,  36 

Chubb,  Aldrich  v.  35  Mich.  350,  84,  85 
Chrisman,  Burk  v.  3  B.  Mon.  (Ky.) 

50,  276 

Chrisman,  Mathews  v.  12  Smedes 

&  Mar.  (Miss.)  595,  164,  165 

Christmas,  Thomhill  i\  10  Robin- 
son (La.)  543,  434 
Christner  v.  Brown,  16  Iowa,  130, 

21,  305 
Christie  v.  Simpson,  1   Rich.   Law 

(So.  Car.)  407,  76 

Christie,  Valentine  v.  1  Robinson 

(La.)  29S,  15 

Christy's  Adrar.  v.  Home,  24  Mo. 

242,  504 

Christopher,    Haydon    v.    1  J.  J. 

Marsh.  (Ky.)  382,  52 

Chilton  V.  Chapman,  13  "Mo.  470,  236 
Church  V.  Brown,  29  Barb.  (N.  Y.) 

486,  71 

Church  V.  Brown,  21  New  York. 

315,  70,  166 

Church,  Bushnell  v.  15  Ct.  406,  164,  520 
Churchill,  Ida  v.  14  Ohio  St.  372, 

244,  296 
Churn,  Ward  v.  18Gratt.  (Va.)  801,  357 
Chute  V.  Pattee  37  Me.  102,  307 

City  of  Paducah  v.  Cully,  9  Bush 

(Ky.)  323,  29 


Section 
City  of  Chicago,  Foss  v.  84  III.  488,  370 
City  of  Keokuk  v.  Love,  31  Iowa, 

119,  261,  266,  278 

City  Atchison,  Manly  v.  9  Kansas, 

CJ8,  476 

City  National  Bank  of  Ottawa  v. 

Dudgeon,  65  111.  11,  275 

City  of  Lowell  v.  Parker,  10  Met. 

(Mass.)  309,  484,  530 

City  Council  v.  Paterson,  2  Bailey 

Law  (So.  Car.)  165,  474 

City  of  St.  Louis  v.  Sickles,  52  Mo. 

122,  483 

City  of  Indianapolis  v.  Skeen,   17 

Ind.  628,  104 

City  Bank,  Stetson  v.  2  Ohio  St. 

167,  521 

City  Bank  of  N.  0.  Stetson  v.   12 

Ohio  St.  577,  82 

City  of  Maquoketa  v.  Willey,   35 

Iowa,  323,  381 

City    Bank    v.   Young,    43    New 

Hamp.  457,  38G 

Claflin  V.  Briant,  58  Ga.  414,  157 

Claflin  V.  Cogau,   48  New  Hamp. 

411,  126 

Claflin  V.  Ostrom,  54  New  York, 

581,  34 

Claggett,  Rockingham  Bank  v.  20 

New  Hamp.  292,  273 

Clagett,  Salmon  v.  3  Bland's  Ch. 

R.  (Md.)  125,  329 

Clagett  V.  Salmon,  5  Gill.  &  Johns. 

(Md.)  314,  329,  337 

Claiborne  v.  Birge,  42  Texas,  98,  314 
Clancy  v.  Piggott,  4  Nev.  &  Mann. 

496,  63,  68 

Clap,  Harris  v.  1  Mass.  308,  93 

Clapp  V.  Rice,  15  Gray,  557,  241,  255 
Clapp  V.  Rice,  13  Gray,  403,  151,  226 
Clapp  V.  Seibrecht,  11  La.  An.  528,  405 
Clapp,  Shippen's  Admr.  v.  36  Pa. 

St.  89,  384 

Clark,  Bagley  v.  7  Bosw.  (N.  Y.) 

94,  341 

Clark,  Barney  v.  46  New  Hamp. 

514,  212,  381 

Clark  V.  Barrett,  19  Mo.  39,  503 

Clark  V.  Bell,  8  Humph.  (Tenn.)  26,  194 


XXXVl 


TABLE   OF   CASES. 


Section 
Clark,  Brazier  v.  5  Pick.  96,  498 

Clark,  Buchanan  v.  10  Gratt.  (Va.) 

1G4,  262 

Clark  V.  Burdett,  2  Hall  (N.  Y.) 

217,  167 

Clark  V.  Bush,  3  Cowen,  151,  93 

Clark,  Cameron  v.  11  Ala.  259,  49 

Clark,  Farnsworth  v.  44  Barb.  601,  9 
Clark,  Geiger  v.  13  Cal.  579,  157 

Clark  V.  Gordon,  121  Mass.  330,  90 
Clark,  Howard  v.  36  Iowa,  114,  311 
Clark,  Hunter  v.  28  Texas,  159,  382 
Clark,  Keer  v.  4  Humph.    (Tenn.) 

77,  240 

Clark.  Kingston  Mut.  Ins.  Co.  v. 

33  Barb.  (N.  Y.)  196,  139 

Clark,  Menifee  v.  35  Ind.  304,  298 

Clark  v.  Merriam,  25  Conn.   576, 

147,  148,  153,  170 
Clark,  Poland  v.  10  B.  Hon.  (Ky.) 

239,  384 

Clark,   Lee    v.  1  Hill  (N.  Y.)  56, 

29,  106,  524 
Clark  V.  Oman,  15  Gray,  521,  191 

Clark  V.  Patton,  4  J.   J.   Marsh. 

(Ky.)  33,  311 

Clark,  Pyke's  Admr.  v.  3  B.  Mon. 

(Ky.)  262,  309 

Clark  y.  Remington,  11  Met.  (Mass.) 

361,  163 

Clark  V.  Ritchie,  11  Grant's  Ch.  R. 

499,  350 

Clark  V.  Roberts,  26  Mich.  506,  16 

Clark,  Russell  v.  7  Cranch,  69,  59 

Clark,  St.  Louis  Building  and  Sav- 
ings Assn.  V.  36  Mo.  601,  281 
Clark  V.   Sickler,   64  New  York, 

231,  295 

Clark  V.  Sigoumey,  17  Ct.  511,  120 

Clark  V.  Small,  6  Yerg.   (Tenn.) 

418,  6,  68 

Clark.  Struthers  v.  30  Pa.  St.  210,  110 
Clark,  Waterman  v.  76  111.  428,  203 
Clark,  Weed  v.  4  Sandf.  (N.  Y. 

Superior  Ct.)  31,  71 

Clark,  Whiting  v.  17  Cal.  407,  296 

Clark,  Young  v.  2  Ala.  264,  252 

Clark's  Exr.  Buckner  v.  6   Bush, 

168,  6 


420 
403 

189 

317 

188 


494 


Section 
Clark's  Exr.  RusseU  v.  7  Cranch, 

69, 
Clarke  v.  Bell,  2  Littell  (Ky.)  164, 
Clarke,  De  Castro  v.  29  Cal.  11, 
Clarke,  Emery  v.  2  J.  Scott,  (N.  S.) 

582, 
Clarke  v.  Henty,  3  Youuge  &  CoU. 

(Exch.)  187, 
Clarke,  Pond  v.  14  Ct.  334, 
Clarke  v.  Potter  County,  1  Pa.  St. 

159, 
Clarkson  d.  Commonwealth,  2  J.  J. 

Marsh.  (Ky.)  19, 
Clarkson,   Jenkins    v.  7  Ohio,  72, 

208,  298,  306 
Clardy,  Hendry  v.  8  Fla.  77,  491 

Claremont  Bank  v.  Wood,  10  Vt. 

582,  28 

Clason  V.  Bailey,  14  Johns.  484,  66,  75 
Clason,  Merritt  v.  12  Johns.  102,  75, 76 
Clason,  Sanders  v.  13  Minn.  379,  52 
Clay,    Commonwealth  v.  9  Phila. 

(Pa.)  121,  436 

Clay  V.  Edgerton,  19  Ohio  St.  549,  170 
Clay,  Goodloe  v.  6  B.  Mon.  (Ky.) 

236,  236,  288 

Clay  V.  Schmitzell,  5  PhUa.  (Pa.) 

441, 
Clay,  Wagnon  v.  1  A.  K.  Marsh. 

(Ky.)  257, 
Clay  V.  Walton,  9  Cal.  328, 
Cleanwater,  Fowler  v.  35  Barb.  (N. 

Y.)  143, 
Cleasby,  Morris  v.  4  Maule  &  Sel. 

566, 
Cleaves  v.  Foss,  4  Greenl.  (Me.)  1, 
Clegge,  Woodward  v.  8  Ala.  317, 
Clements  r.  Cassilly,  4  La.  An.  380,  349 
Clements  t\  Langley,  2  Nevile  & 

Man.  269, 
Clendaniel,  Hastings  v.  2  Del.  Ch. 

R.  165, 
Clendenin,   Johnson  v.   5   Gill  & 

Johns.  (Md.)  463, 
Clippinger  r.  Crops,  2.Watts  (Pa.) 

Cleveland  R.  R.  Co.  t\  Connecti- 
cut, &c.  Ins.  Co.  41  Barb.  (N.  Y.) 
9.  70 


227 

54 
56 

53 

57 

76 

371 


240 


3£ 


431 


325 


TABLE   OF    CASES. 


XXX  Vll 


Section 
Cleveland  v.  Skinner,  56  111.  500,  440 
Cleveland,  Thomas'  Exr.  v.  33  Mo. 

126,  380 

Click  V.  McAfee,  7  Port.  (Ala.)  62,  48 
Click,  Rolston  v.  1  Stew.  (Ala.)  526,  10 
Clinan  r.  Cooke,  1  Schoales  &  Le- 

froy,  22,  66,  76 

Clinton  Bank  v.  Ayres,    16  Ohio, 

283,  95 

Clinton,  Western  N.  Y.  Life  Ins. 

Co.  V.  66  New  York,  326,  353 

Comeg-ys  v.  Cox,  1   Stew.   (Ala.) 

262,  326 

Cloclough,  McLure  r.  17  Ala.  89,  363 
Compton's  Exrs.  v.  Hall,  51  Miss. 

482,  9 

Clompton,  Smith  v.  43  Miss.  66,  18 

Commonwealth,   "White    Exrs.    v. 

30  Pa.  St.  107,  113 

Clopton,    Smith    v.   48  Miss.    66, 

209,  317,  508 
Clopton  V.  Spratt,  52  Miss.  251,  388 
Clore  V.  Bailey,  6  Bush  (Ky.)  77,  478 
Clough,  F —  V.  8  Greenl.   (Me.) 

334,  445 

Clouser,  Hart  v.  30  Ind.  210,  331 

Cloud,  Price  v.  6  Ala.  248,  515,  522 
Clore,  Ross  v.  3  Dana  (Ky.)  189,  200 
Clossey,  Union  Bank  v.  10  Johns. 

271,  479 

Clymer  v.  DeYoung,  54  Pa.  St.  118, 

49,52 
Coats  V.  Swindle,  55  Mo.  31,  17,  517 
Coats  V.  McKee,  26  Ind.  233,  22,  345 
Coates  V.  Coates,  33  Beavan,  249, 

105,  375 
Cobb,  Atwood  v.  16  Pick.  227,  67 

Cobb,  Bent  v.  9  Gray,  397,  76 

Cobb  V.  Curts,  4  Littell  (Ky.)  235,  13 
Cobb  V.  Haynes,  8  B.  Mon.  (Ky.) 

137,  222,  529 

Cobb,  Howell  v.  2  Cold.  (Tenn.)  104, 192 
Cobb  V.  Little,  2  Greenl.  (Me.)  261,  86 
Cobb,  Lombard  v.  14  Me.  222,  255 

Cobb  V.  Page,  17  Pa.  St.  469,  6 

Cobb,  Parham  v.  9  La.  An.  423,        412 
Cobb,  Webster  v.  17  111.  459,      33,  147 
Coble,    Governor  v.  2  Dev.  Law 
(Nor.  Car.)  489,  460 


Section 
Cobum,  Conn.  v.  7  New.  Hamp. 

368,  196 

Coburn    v.     Wheelock,     34    New 

York,  440,  252 

Cochran,  Beall  v.  18  Ga.  38,  125 

Cochran,    Chambers    v.   18  Iowa, 

159,  27, 216 

Cochran  i-.  Dawson,  1  Miles  (Pa.) 

276,  86 

Cochran,  Deal  v.  66  Nor.  Car.  269.  296 
Cochrane,  Eastern  Union  Railway 

Co.  9  Wels.  Hurl.  &  Gor.  197,        101 
Cochran,  United  States  v.  2  Brock- 

enbrough,  274,  293 

Cocke,  State  v.  2,1  Texas,  155,  439 

CockriU  V.  Dye,  33  Mo.  365,  513 

Codwise,  Dickinson  v.  1  Sandford's 

Ch.  R.  214,  22 

Cody,  Studabaker  v.  54  Ind.  586, 

33,  164 
Cos  V.  Duffield,  7  Moore,  252,  73 

Coe  V.  New  Jersey  Midland  R.  R. 

Co.  .27  New  Jer.  Eq.  110,  260 

Coffenbury,    Supervisors    of     St. 

Joseph  V.  1  Manning  (Mich.)  355,  12 
Coffil,  Allen  v.  42  111.  293,  154 

Coffman,  Morgan  v.  8  La.  An.  56,    391 
CofFman  v.  WUson,  2  Met.  (Ky.) 

542,  349 

Cogan,  Claflin  v.  48  New  Hamp. 

411,  126 

Coger's  Exrs.   v.  McGee,  2  Bibb 

(Ky.)321,  352 

Coggeshali  v.  Ruggles,  62  111.  401, 

109, 182 
Cohn,  Seawell  v.  2  Nevada,  308,  323 
Cohen,  Strohecker  v.  1  Spear  (So. 

Car.)  349,    •  58 

Cohea  v.  Commissioners,  7  Smedes 

&  Mar.  (Miss.)  437,  392 

Coker,  Robertson  t;.  11  Ala.  466,       363 
Colbert,   Curan  v.  3  Kelly  (Ga.) 

239,  27,  878 

Colbourn  v.  Dawson,  10  Com.  B.  (1 

J.  Scott)  765,  73 

Colcord,  New  Hampshire  Savings 

Bank  v.  15  New  Hamp.  119,    300,  370 
Coklham  v.  Shower,  3  Man.  Gr.  & 

Scott,  312,  73 


XXXVlll 


TABLE    or    CASES. 


Sectiox 
Cole,  County  v.  Angney,    12  Mo. 

132,  105 

Cole,  Blake  v.  22  Pick.  97,  46 

Cole  V.  Dyer,  1  Cro.  &  Jer.  461,  68,  71 
Cole,  Huff  V.  45  Ind.  300,  308,  331 

Cole  V.  Justice,  8  Ala.  793,  203 

Cole,  Kearsley  v.  16  Mees.  &  Wels. 

128,  329 

Cole,  Manufacturers'  Bank  v.  39 

Me.  188,  95 

Cole  V.  Trecothick,  9  Yesey,  234,  66 
Coleen,  Whitehurst  v.  53  111.  247,  514 
Coles,  Hulme  v.  2  Simons,  12,  321 

Coles  V.  Pack,  Law  Rep.  5  Com. 

PL  65,  134 

Coles  V.  Trecothic,  9  Vesey,  234,  75,  76 
Coleg-ate,    Lynch    v.    2    Harr.    & 

Johns.  (Md.)  350 

Coley,  McCrary  v.  Georgia  Deci- 
sions, 104,  27 
Coleman  v.  Bailey,  4  Bibb,  (Ky.) 

297,  76 

Coleman  v.  Bean,  1  Abbott's  Hep. 

Omitted  Cas.  (N.  Y.)  394,  ^9,  353 
Coleman,  Commonwealth  v.  2  Met. 

(Ky.)  382,  432 

Coleman,  Edwards  v.  6  T.  B.  Mon. 

(Ky.)  567,  296,  299 

Colman  v.  Eyles,  2  Starkie,  62,  62 
Colemtwi  V.  Forbes,  22  Pa.  St.  156,  120 
Coleman,  Stockton  v.  39  Ind.  106,  202 
Coleman  v.  \Valler,  3  Tounge  & 

Jer.  212,  362 

Colemard  v.  Lamb,  15  Wend.  329,  346 
Colgin  V.  Henley,  6   Leigh  (Va.) 

85,  9,  68,  88 

ColgTOve   V.   Tallman,   2  Lansing 

(N;  Y.)  97,  19,  23 

Colgrove  v.  Talman,  67  New  York, 

95,  23,  206 

Collier,  Sherwood  v.   3  Dev.  Law 

(Nor.  Car.)  380,  270 

Collier,  Wheeler  v.  Moo.   &   i\Ial. 

123,  67 

Collinge  V.  Heywood,   9  Adol.   & 

Ell.  633,  199 

Collins  r.  Boyd,  14  Ala.  505,  180 

Collins,  Crawford  v.  45  Barb.  (N. 

Y.)  269,  420 


Section 
Collins,  Corkins  v.  16  Mich.  478,  50 
CoUms  V.  Gwynne,  2  iloore  &  Scott, 

640,  474 

Collins  V.  Mitchell,  5  Fla.  364,  30,  408 
Collins,  Penn.  v.  5  Robmson  (La.) 

213,  339 

Collins  V.  Prosser,  1  Barn.  <&  Cress. 

682,  383 

Collins  V.  Prosser,  3  Dow.  &  Ryl. 

112,  383 

Collins,  Rankin  v.  50  Ind.  158,  254 
Lolt  V.  Root,  17  Mass.  229,  58 

Colvin,  Roberts  «.  3  Gratt(Va.)  358,  296 
Comai:   v.   State,  4  Blackf.  (Ind.) 

241,  324 

Combe  v.  Woolf,  1  Moore  &  Scott, 

241,  296,  298 

Combe  v.  Woolf,  8  Bing.  156,  296,  298 
Combs,   Bohannon  v.   12  B.  Mon. 

(Ky.)  563,  227 

Combs,  Ingham's  Admrs.  v.  17  Mo. 

558,  458 

Combs  V.  People,  89  111.  183,  127 

Comegys,  Bigeloww.  5  Ohio  St.  256,  420 
Comegys  v.  Booth,  3  Stew.  (Ala.) 

14,  326 

Comegys  v.   State  Bank,   6    Ind. 

357,  235 

Comfort  r.  Eisertbeis,  11  Pa.  St.  13,  189 
Comly,  Commonwealth  v.  3  Pa.  St. 

372,  477 

Commercial  Bank,  Hardcastle  v.  1 

Harrington  (Del.)  374,  281 

Com.  Nat.  Bank,  Wayne  v.  52  Pa. 

St.  343,  104,  367 

Commercial  Bank  v.  Western  Re- 
serve Bank,  11  Ohio,  444,  27,  380 
Commissioners    of    Berks    Co.    v. 

Ross,  3  Binney  (Pa.)  520,  377 

Com.  of  Wash.   Co.   Bower  v.  25 

Pa.  St.  69  476 

Commissioners  v.  Canan,  2  Watts 

(Pa.)  107,  340 

Commissioners,  Cohea  v.  7  Smedes 

&  Mar.  (Miss.)  437,  392 

Commissioner  ik  Exr.  of  Robinson, 

1  BaiUy  Law  (So.  Car.)  151,  359 

Commissioners  v.  Mayrant,  2  Bre- 
vard (So.  Car.)  228,  487 


TABLE   OF    CASES. 


XXXIX 


Sectiox 
Commissioners  of  Ripley  Co.  6  Ind. 

128,  18,  209,  210,  301,  327 

Commissioners     of     Stokes      Co. 

Davis  V.  U  Nor.  Car.  374,  194 

Commonwealth  v.  Adams,  3  Bush 

(Ky.)41,  449 

Commonwealth,   Alcorn  v.  66  Pa. 

St.  172,  207 

Commonwealth,  Asians  v.  1  Duvall 

(Ky.)  275,  432 

Commonwealth,  Arents  v.  18  Gratt. 

(Va.)  750,  34,  86 

Commonwealth  v.  Branch,   1  Bush 

(Ky.)  59,  432,  433 

Commonwealth,  Branch  v.  2  Call 

(Va.)  510,  451 

Commonwealth  v.  Brassfield,  7  B. 

Mon.  (Ky.)  447,  518 

Commonwealth  v.  Brickett,  8  Pick. 

138,  427 

Commonwealth  r.  Clay,   9  Phila. 

(Pa.)  121,  436 

Commonwpalth,    Chapman    v.   25 

Gratt.  (Va.)  791,  294 

Commonwealth,  Clarkson  v.  2  J.  J. 

Marsh.  (Ky.)  19,  494 

Commonwealth  v.  Coleman,  2  Met. 

(Ky.)  382,  432 

Commonwealth  v.  Cox's  Adrar.  36 

Pa.  St.  442,  461 

Commonwealth  v.  Comly,  3  Pa.  St. 

372,  477 

Commonwealth,     Crutcher     t'.     6 

Wharton  (Pa.)  340,  425 

Commonwealth,  Daly  v.  75  Pa.  St. 

331,  144 

Commonwealth,  Ditmars  v.  47  Pa. 

St.  335,  481 

Commonwealth    v.     Douglas,     11 

Bush  (Ky.)  607,  433 

Commonwealth,  Elder  t?.  55  Pa.  St. 

485,  278 

Commonwealth,  Evans  v.  8  Watts 

(Pa )  398,  530 

Commonwealth  v.  Fairfax,  4  Hen. 

&  Munf.  (Va.)  208,  139 

Commonwealth,  Finney's  Admrs. 

V.     1     Pen.     &     Watts     (Pa.) 

240,  370 


Section 
Commonwealth  v.  Gabbert's  Admr. 

5  Bush  (Ky.)  438,  469 

Commonwealth,  Garber   v.  7  Pa. 

St.  265,  532 

Commonwealth  v.  Gilson,  8  Watts 

(Pa.)  214,  499 

Commonwealth     v.     Gould,     118 

Mass.  300,  524 

Commonwealth,  Hale  v.  8  Pa.  St. 

415,  481 

Commonwealth  v.  Hilg-ert,  55  Pa. 

St.  236,  499 

Commonwealth,  Holandsworth  v. 

11  Bush  617,  4 

Commonwealth  v.  Holmes,  25  Gratt. 

(Va.)  771,  324,  469 

Commonwealth  v.  Jackson's  Admr. 

1  Leigh  (Va.)  485.  4-16 

Commonwealth,  Johnson  v.  2  Duv. 

(Ky.)  410,  4 

Commonwealths.  Johnson,  3  Cush. 

454,  427 

Commonwealth  v.  Kendig,  2  Pa. 

St.  448,  14,  481 

Commonwealth,  Littler.  48 Pa.  St. 

337,  108 

Commonwealth,    M'Caraher    v.    5 

Watts  &  Serg.  (Pa.)  21,  443 

Commonwealth,  ]\IcClure  v.  80  Pa. 

St.  167,  493 

Commonwealth,    McMicken  v.   58 

Pa.  St.  213,  439 

Commonwealth,  Mears  v.  8  Watts, 

(Pa.)  223,  442 

Commonwealth,  Medlin  v.  11  Bush  ■ 

(Ky.)  605,  431 

Commonwealth,  Miller  v.  8  Pa.  St. 

444.  450 

Commonwealth  v.  Miller's  Admr. 

8    Serg.     and     Eawle,     452, 

27,  378 
Commonwealth,     Mitchell    v.     12 

Bush  (Ky.)  247,  426 

Commonwealth,    Monteith    v.    15 

Giatt.  (Va.)  172,  29 

Commonwealth,  OfFutt  v.  10  Bush 

(Ky.)  212,  460 

Commonwealth  v.  Preston,  5  T.  B, 

Mon.  (Ky.)  584,  474 


xl 


TAELE   OF    CASES. 


Section 
Commonwealth  v.  Ramsay,  2  Duv. 

(Ky. )  386,  4 

Commonwealth  v.  Ray,  3  Gray,  441,  75 
Commonwealth,  Richards  v.  40  Pa. 

St.  146,  39-^ 

Commonwealth  v.  Risdon,  8  Phila- 
delphia (Pa.)  23,  431 
Commonwealth  v.  Rogers,  53  Pa. 

St.  470,  501 

Commonwealth,  Small  v.  8  Pa.  St. 

101,  ^  502 

Commonwealth,  Smith  v.  25  Gratt. 

(Ya.)  7S0,  324 

Commonwealth,  Smith  v.  59  Pa. 

St.  3-0,  488 

Commonwealth  v.  Sommers,  8  Bush 

(Ky.)  555,  483 

Commonwealth,  Stanton  v.  2  Dana 

(Ky.)  397,  486 

Commonwealth  v.  Stub,  11  Pa.  St. 

150,  .,  494 

Commonwealth  v.  Swope,  45  Pa. 

St.  535,  454 

Commonwealth  v.  Toms,  45  Pa.  St. 

408,  142 

Commonwealth     v.     "Webster,     1 

Bush  (Ky.)  616,  430 

Commonwealth    v.      Wenrick,    8 

Watts  (Pa.)  159,  495 

Commonwealth,     "Wintersoll  v.   1 

Duvall  (Ky.)  177,  433 

Commonwealths.  Wolbert,  6  Bin- 

ney  (Pa.)  292,  474 

Company  of   Proprietors    of    the 

Liverpool  Waterworks  v.  Atkin- 
son, 6  East,  507,  138 
Compher  v.  People,  12  111.  290,        469 
Comstock  V.   Creon,  1   Robinson, 

(La.)  528,  378 

Comstock  Kimbell  v.  14  Gray,  508,     59 
Compton,    Freeland    v.   30    Miss. 

424,  298 

Compton,  Henry  v.  2  Head  (Tenn.) 

549,  204 

Compton,  Smith  v.  6  Cal.  24,  301 

Compton,  Stone  v.  5  Bing.  (N.  C.) 

142,  '  364 

Compton,  Stone  v.  6  Scott,  846,        364 
Canada   West,    etc.    Ins.    Co.  v. 


Section 

Merritt,  20  Up.  Can.  Q.  B.  R. 

444,  111 

Conant,  Dana  v.  30  Vt.  246,  83,  84 
Conant  v.  Patterson,  7  Vt.  163,  438 
Conant,  Skinner  v.  2  Vt.  453,  63 

Concord    v.     Pillsbury,    33    New 

Hamp.  310,  203 

Cone,  State  v.  32  Ga.  663,  428 

Congdon,    Pitts  v.   2  New  York, 

352,  53 

Congdon  v.  Read,  7  Rhode  Is.  576,  136 
Conkhn,  ConkHn  v.  54  Ind.  289,  606 
Conklin,  DeVries  v.  22  Mich.  255,  4 
Conkey  v.  Hopkins,  17  Johns.  113,  46 
Conner,  Maxwell  v.  1  Hill  Eq.  (So. 

Car.)  14,  209 

Conner  v.  WiUiams,  2  Rob.  (N.  T.) 

46,  52 

Connecticut,  &c.  Ins.  Co.  v.  Cleve- 
land R.  R.  Co.  41  Barb.  (N.  Y.) 

9,  70 

Connecticut  Mut.  Life  Ins.  Co.  v. 

Boroler,  1  Holmes,  293,  345 

Connerat  v.  Goldsmith,  6  Ga,  14,  44 
Conn    V.   Coburn,  7  New  Hamp. 

368,  196 

Consolidation  Bank,   Mar.sh  v.  48 

(Pa.)  Stat.  510,  17,  46 

Consohdated  Presbyterian  Society 

V.  Staples,  23  Conn.  544,  49 

Conoly  V.  Kettlewell,  1  GiU   (Md.) 

260,  62,  64 

Conover  v.  Hill,  76  111.  342,  248 

Conover,  State  v.  4  Dutcher  (N.  J.) 

224,  484 

Conrad  v.  Foy,  68  Pa.  St.  381,  207 

Conrad,  Smith  v.  15  La.  An.  579,  233 
Consaulus,  Bradford    v.  3  Cowen, 

128,  431 

Constable,  Walker  v.  1  Bos.  &  Pul. 

306,  76 

Constant,  Hall  v.  2  Hall  (N.  Y.) 

205,  306 

Constant  v.  Matteson,  22  111.  546,  285 
Considine  v.  Considine,  9  Irish  Law 

Rep.  400,  199 

Converse,  Davis  v.  35  Vt.  503,  363 

Conway  i'.  Bank  of  U.  S.,  6  J.  J. 

Marsh.  (Ky.)  128.  95 


TABLE   OF   CASES. 


Xli 


Section 
Conway,  Hempstead  v.  6  Ark.  (1 

Eng.)  317,  209 

Conwell  V.  McCowan,  53  111.,  363,  275 
Copeland,  Davis  v.  67  New  York, 

127,  106 

Cope  V.  Smith's  Exrs.   8  Serg.  & 

Rawle  (Pa.)  110,  206,  296 

Copis  V.   Middleton,    1  Turner  & 

Russ.  224,  273 

Copis  V.  Middleton,  2  Turner   & 

Russ.  224,  275 

Cook,  Armstrong  v.  30  Ind.  22,  348 
Cook,  Cheeney  v.  7  Wis.  413,  70 

Cook,  Cheltenham  Fire  Brick  Co.  v. 

44  Mo.  29,  518 

Cook,  Hargroves  v.  15  Ga.  9,  68 

Cook,  Miller  ?).  23  New  York,  495,  70 
Cook  V.  Orne,  37  111.  186,  147,  151,  157 
Cook,  Thomas  v.  3  Man.  &  Ry.  444,  46 
Cook,  Thomas  v.  8  Barn.  &  Cress. 

728,  46,  58 

Cook  V.  Southwick,  9  Texas,  615,  153 
Cook,  Wood  V.  31  111.  271,  489 

Cooke  V. ,  Freeman's  Ch.  R. 

97,  230 

Cooke,  Clinan  v.  1  Schoales  &  Le- 

froy,  22,  66,  76 

Cooke  V.  Crawford,  1  Texas,  9,  404 
Cooke,  Hargroves  v.  15  Ga.  321,  68 
Cooke  V.  Nathan,  16  Barb.  (N.  Y.) 

342,  83, 348 

Cooke  V.  Orne,  37  111.  186,  164 

Cooke,  Petty  V.  Law  Rep.  6  Queen's 

Bench,  790,  290 

Cooke,  Simson  v.  9  Moore,  558,  98 

Coolbaugh,   Ramsey  v.   13    Iowa, 

164,  410 

Cooley,  Ordinary  v.  1  Vroom  (N. 

J.)  179,  12 

Coombs  V.  Parker,  17  Ohio,  289,  390 
Coons,  Norton  v.  3  Denio,  310,  223 
Coons,  Norton  v.  6  New  York,  33,  226 
Coons  V.  People,  76  111.  383,  466 

Cooper,   Bentham    v.    5  Mees.   & 

Wels.  621,  71 

Cooper  V.  Chambers,  4  Dev.  (N.C.) 

261,  48 

Cooper  V.  Dedrick,  22  Barb.  (N.Y.) 

516,  33,  70,  537 


Section 
Cooper  V.  Evans,  Law  Rep,  4  Eq. 

Cas.  45,  210,  350 

Cooper  V.   Fisher,  7  J.  J.  Mai'sh. 

(Ky.)  396,  318 

Cooper,  Frankhn  Bank  v.  39  Me. 

542,  367 

Cooper,  Franklin  Bank  v.  36  Me. 

179,  12,  14,  365,  366 

Cooper  V.  Jenkins,  32  Beavan,  337,  267 
Cooper,  Jones  v.  1  Cowp.  227,  61,  63 
Cooper  V.  Joel,  1  De  Gex,  Fish.  & 

Jo.  240,  107 

Cooper,  Joyner  v.   2  Bailey  Law 

(So.  Car.)  199,  15,  452 

Cooper  V.  Martin,  1  Dana  (Ky.)  23,  233 
Cooper  V.  Page,  24  Me.  73,  81,  170 
Cooper,  Peppin  v.  2  Barn.  &  Aid. 

431,  140 

Coppock,  OrreU  v.  26  Law  Jour. 

Ch.  269,  53 

Cooper  V.  Wilcox,  2  Devereaux  & 

Bat.  Eq.  (Nor.  Car.)  90,  378 

Coope  V.   Twynam,    1    Turner    & 

Russ.  426,  224 

Coope,  Wade  v.  2  Simons,  155,  279 
Coovert,  Mercer  County  v.  6  Watts 

&  Serg.  (Pa.)  70,  102 

Coover,  Henderson  v.  4  Nevada, 

429,  473 

Corbet  V.  Evands,  25  Pa.  St.  310,  110 
Corbett,  Bay  Ordinary  v.  (So.  Car.) 

328,  502 

Corbitt  V.  Carroll,  50  Ala.  315,  445 
Corbin  V.  McChesney,  26  III.  231,  49 
Corbin,  Thurber  v.  51  Barb.  (N. 

Y.)  215,  23 

Corcoran,  Wood  v.  1  AUen  (Mass.) 

405.  48 

Cordevoille,  Merchants  Bank  r.  4 

Robinson  (La.)  506,  386 

Cordle  v.  Burch,    10  Gratt.  (Va.) 

480,  29 

Co):duan,  Dane,  v.  24  Cal.  157,  208 
Corielle  v.  Allen,  13  Iowa,  289,  17,  309 
Corprew  v.  Boyle,  24  Gratt.  (Va.) 

284,  463 

Corkins  v.  Collins,  26  Mich.  478,  50 
Cornel]  o.  Prescott,  2  Barb.  (N.  Y.) 

16,  24 


xlii 


TABLE    OF   CASES. 


Section 
Corawell's    appeal,    7    Watts    & 

Serg.  (Pa.)  305,  287 

Cornwall,  Baker  v.  4  Cal.  15,  68 

Cornwell  v.   Holly,    5  Richardson 

Law  (So.  Car.)  47,  310 

Corporation  of  Chatham  v.  McCrea, 

12  Up.  Can.  C.  P.  R.  352,  84 

Corporation  of     Huron   v.    Arm- 
strong, 27  Up.  Can.  Q.  B.  R.  533,  349 
Corporation  of  Ontario  v.  Paxton, 

27  Up.  Can.  C.  P.  R.  104,  472 

Corporation  of  Whitby  v.  Harrison, 

18  Up.  Can.  Q.  B.  R.  606,  445 

Corwin,  Fithian  v.  17  Ohio  St.  118,  297 
Corwine,  United  States  v.  1  Bond, 

339,  347 

Cory  V.   Leonard,   56  New  York, 

494,  281 

Cosby,  F.  &  M.  Bank  of  Lexington 

V.  4  J.  J.  Marsh.  (Ky.)  366,  328 

Coshow,  Howard  v.  33  Mo.  118,  58 

Coste,  State  v.  36  Mo.  437,  532 

Coster  V.  Mesner,  58  Mo.  549,  305 

Coster's    Exr.   Union   Bank  v.   3 

New  York,  203,  67,  73,  167, 173 

Cotten,  Exr.  Mitchell  v.  3  Fla.  134,  363 
Gotten,  Mitchell  v.  Exr.  2  Florida, 

136,  290 

Couch  V.  Terry,  12  Ala.  225,  2  3 

Couch  V.  Waring,  9  Ct.  261,  124 

Courtis  V.  Dennis,  7  Met.  (Mass.) 

510,  163 

Coulter,  Schmidt  v.  6  Minn.  492,      236 
Countryman,  Dunham  v.  66  Barb. 

(N.Y.)  268,  313 

Courts,  Burnet  v.  5  Harr.  &  Johns. 

(Md.)  78,  292 

Coupland,  Wilson  v.  5  Barn.  &  Aid. 

228,  52 

Council  Bluffs  Bank,  Jones  v.  34 

111.  313,  53 

Couturier  v.   Hastie,   5  House  of 

Lords  Cas.  673,  57 

Couturier,  Hastie  v.  9  Wels.  Hurl. 

&  Gor.  102.  57 

Couturier  v.  Hastie,  8  Wels.  Hurl. 

&  Gor.  40,  57 

County  of  Fontenac  v.  Breden,  17 
Grant's  Ch.  R.  645,  450,  474 


County  of  Macoupin,   Miller  v.  2 

Gilman  (111.)  50,  463 

County  Co.  of  Ramsey  Co.  v.  Bris- 

bin,  17  Minn.  451,  445 

County  of  Schuylkill,  Bochmer,  v. 

46  Pa.  St.  452,  446 

County  of  Wapello  v.  Bingham,  10 

Iowa,  39,  464 

Covington,    Board    of    Police    of 

Clark  Co.  V.  26  Miss.  470,  298,  323 
Covington,  Haynes  v.  9  Smedes  & 

Mar.  (Miss.)  470,  296 

Covilliaud,  Williams  v.  10  Cal.  419,  318 
Covert,  Bank  of  Upper  Canada  v. 

5  Up.  Can.  K.  B.  R.  (0.  S.)  541,  342 
Cowan  V.  Baird,  77  Nor.  Car.  201,  349 
Cowan  V.  Duncan,    Meigs  (Tenn.) 

470,  227 

Cowan,  Morrell  v.  Law  Rep.  6  Eq. 

Div.  166,  9,  109 

Cowell  V.  Edwards,  2  Bos.  &  Pull. 

268,  252 

Covvles,  Atlantic  &  N.  C.  R.  R.  Co. 

V.  69  Nor.  Car.  59,  477 

Cowgill,  Gowing  v.  12  Iowa,  495.      480 
Cowper  V.  Smith,  4  Mees.  &  Wels. 

519,  126 

Cox,  Bonser  v.  4  Beavan,  379,   103,  350 
Cox,  Bonser  v.  6  Beavan,  110,  103 

Cox,  V.  Brown,  6  Jones  Law  (Nor. 

Car.)  100,  168 

Cox,   Comegys  v.   1  Stew.    (Ala.) 

262,  326 

Cox's  Admr.  Commonwealth  v.  36 

Pa.  St.  442,  461 

Cox,  High  V.  55  Ga.  662,  211 

Cox,  Keaton  v.  26  Ga.  162,  82 

Cox,  Lansdale  v.  IT.  B.  Mon.  (Ky.) 

401,  220 

Cox  V.  Mobile  &  Girard  R.  R.  Co. 

37  Ala.  320,  298,  309 

Cox  V.   Mobile  and  Girard  R.  R. 

Co.  44  Ala.  Oil,  309 

Cox,  Reid  v.  5  Blackf.  (Ind.)  312,     511 
Cox  V.   Thomas'  Admx.   9  Graft. 

(Va.)  312,  25,  29 

Cozens,  Jemison  v.  3  Ala.  636,  405 

Crabtee,  McHaney  v.  6  T.  B.  Mon. 
(Ky.)  104.  378 


TABLE    OF    CASES. 


xliii 


Section 
Craclclock  v.  Armor,  10  Watts  (Pa.) 

258,  115 

Craft  V.  Docld,  15  Ind.  3S0,  507 

Craft,  Moss  v.  10  Mo.  720,  3S0 

Craft  V.  Isham,  13  Ct.  28,  161,  174,  175 
Crafts,  Crosby  v.  5  Hun  (N.  Y.) 

327,  283 

Crafts  V.  Molt,  4  New  York,  604,  25 
Craig  V.  Calloway  County  Ct.  12 

Mo.  94,  120 

Craig  V.  Craig,  5  Eawle  (Pa.)  91,  176 
Craig,  Force  v.  2  Halstead  (N.  J.) 

272,  290 

Craig  V.  Hobbs,  44  Ind.  363,  354 

Craig  p.  Parkis,  40  New  York,  181, 

34,  82,  85 
Craig  V.  Phipps,  23  Miss.  240,  84 

Craig  V.  Van  Pelt,  3  J.  J.  Marsh. 

iKy.)  489,  38 

Cramer,  Greene  v.  2  Conner  &  Law. 

54,  76 

Cramm,  Simeon  v.  121  Mass.  492,  407 
Crane,  Carville  v.  5  Hill,  483,  45,  60 
Crane  v.  Gough,  4  Md.  316,  38 

Crane,  Hayden  v.   1  Lansing  (N. 

Y.)  181,  136 

Crane,  Humphreys  v.  5  Cal.  173,  296 
Crane,  Jewett  v.  35  Barb.  (N.  Y.) 

208,  216 

Crane  v.  Newell,  2  Pick.  612,  368 

Crane  Bros.  Man.  Co.  Penny  v.  80 

111.  244,  82 

Crane  v.  Stickles,  15  Vt.  252,  370 

Cranston,      United    States    v.    3 

Cranch,  289,  483 

Crapo  V.  Brown,  40  Iowa,  487,  111 

Crawford  r.  Andrews,  6  Ga.  244,  485 
Crawford  Co.  Cannell  v.  59  Pa.  St. 

196,  457 

Crawford,  Cook  v.  1  Texas,  9,  404 

Crawford  v.  Collins,  45  Barb,  (N. 

Y.)  269,  420 

Crawford,   r.   Foster,   6   Ga.   202, 

349,  530 
Crawford  r.  Gaulden,  33  Ga.  173, 

27,  306 
Crawford,  Helen  v.  44  Pa.  St.  105,  207 
Crawford,  Hikes  v.  4  Bush   (Ky.) 

19,  "      180 


Section 
Crawford  v.  Howard,  9  Ga.  314, 

444,487 
Crawford  v.  King,  54  Ind.  6,  49 

Crawford,  Marcy  v.  16  Conn.  549,  46 
Crawford  v.  Penn,  1  Swan,  (Tenn.) 

388,  492 

Crawford  v.  Stirling,  4  Esp.  207,  10 
Crawford,  Tiffany  v.    1  McCarter, 

(N.  J.)  278,  352 

Crawford  v.  Turk,  24  Gratt.  (Va.) 

176,  531 

Crawford  v.  Word,  7  Ga.  445,  485,  531 
Crawley,  Hanson  v.  41  Ga.  303,  333 
Craythome  v.  Swinburne,  MVesey, 

160,  226, 230 

Creagh,  Waters  v.  4  Stew.  .&  Port. 

(Ala.)  410,  211 

Creager  v.   Brengle,   5  Harris  & 

Johns.  (Md.)  234,  .  281 

Crease's  Exr.  Smith  v.  9  Cranch  C. 

C.  481,  209 

Creasor,  Sloan  r.  22  Up.   Can.   Q. 

B.  R.  127,  340 

Creasy,  Haycraft  v.  2  East,  92,  59 

Creath's  Admr.  t\  Sims,  5  How. 

(U.  S.)  192,  296 

Creigh  v.  Hedrick,  5  West  Va.  140,  18 
Creighton,   Krafts  v.  3  Richardson 

Law  (So.  Car.)  273,  180 

Creighton  v.   Rankin,    7   Clark  & 

Finnelly,  325,  474 

Cremer  v.   Higginson,    1   Mason, 

323,  98,  136,  163 

Creon,     Comstock  v.   1  Robinson 

(La.)  528,  378 

Creps,  Clippinger  v.  2  Watts  (Pa.) 

45,  325 

Cresson,    Bank  of   the    Northern 

Liberties  v.  12  Serg.   &   Rawle 

(Pa.)  306,  444 

Cressy  v.  Gierman,  7  Minn.  39S,  481 
Creswell,  Green  v.  10  Adol.  &  Ell. 

453,  Id.  2  Perry  &  Dav.  430,     46,  47 
Creswell,  Hall's  Admr.  r.  12  Gill  & 

Johns.  (Md.)  36,  182 

Creyon,  Leland  v.  1  McCord,  (So. 

Car.)  100,  61,  64 

Crickett,  Mayhew  v.  2  Swanston, 

185,  378,  380 


xliv 


TABLE   OF   CASES. 


Section 
Crickett,  Mayhew  v.  2  Swanstoii, 

193,  221 

Crim  V.  Fitch,  53  Incl.  214,  58 

Cripps  V.  Hartnoll,  4  Best  &  Smith, 

414,  45,  46 

Crist  V.  Burlingaui-^,  62  Barb.  (N. 

Y.)  351,  78, 

Critchfield,  Bush  v.  5  Ohio,  109, 
Crittenden,   Hank  v.   2    McLean, 

557, 
Crockford,  Knight  v.  1  Esp.  190, 
Crocker  v.  Gilbert,  9  Cush.  131, 
Crockett,  Green  v.  2  Dev.  &  Bat. 

Eq.  390, 
Crockett,  Rodes  v.  2  Yerg.  (Tenn.) 

346, 
Crockett,  Trotter  v.  2  Porter  (Ala.) 

401, 
Croft,  Bailey  v.  4  Taunt.  611, 
CrOit  V.  Johnson,  5  Taunt.  319, 
Croft  V.  Moore,  9  Watts  (Ba.)  451, 
Croft,  Thomas  v.  2  Richardson  Law 

So.  Car.  113, 
Crofts  V.  Beale,  11  Com.  B.  172, 
Crofts  V.  Johnson,  1  Marshall,  59, 
Croughton  v.  Duval,  3  CaU  (Va.)  69,  208 
Crooker,  Smith  v.  5  Mass.  538,  336 
Crosby  v.  Crafts,    5  Hun   (N.  Y.) 

327,  283 

Crosby  v.  Middleton,  Finch's  Pre- 
cedents, 309,  118 
Crosby,  Stafford  Bank  v.  8  Greenl. 

(Me.)  191,  299 

Crosby  v.  Wyatt,  23  Me.  156, 

226,  259,  305 
Crosby  v.  Wyatt,   10  New  Hamp. 

318,  259,  299,  305 

Crosthwaite,  Jones  v.  17  Iowa,  393,  128 
Cross,  Apperson  v.  5  Heisk,  (Tenn.) 

481, 
Cross  v.  Ballard,  46  Vt.  415, 
Cross,  Firemans'  Ins.  Co.  v.  4  Rob 

(La.j  508, 
Cross  V.  Richardson,  30  Vt.  641, 
Cross  V.  Richardson,  30  Vt.  647, 
Cross  V.  Rowe,  22  New  Hamp.  77, 
Cross,  Skiff «;.  21  Iowa,  459, 
Cross  V.  Sprigg,  2  Macn.   &   Gor, 

113,  322 


133 
112 

172 
75 


204 

213 

384 

7 

425 

269 


8 
296 


296 
115 

4 
50 
55 
94 

277 


Section 
Cross  V.  Sprigg,  2  Hall  &  Twells, 

223,  322 

Cross  V.  Wood,  30  Ind.  378,  309 

Crothwaite,   Penrice  w.  11  Martin 

(La.)  0.  S.  537,  438 

Carouse    v.    Paddock,    8  Hun   (N. 

Y.)  630,  440 

Crow  v.  Murphy,  12  B.  Mon.  (Ky.) 

444,  "  269 

Crowder  v.  Denny,  3  Head  (Tenn.) 

539,  253 

Crowdus  V.  Shelby,  6  J.  J.  Marsh. 

(Ky.)  61,  178 

Croydon  Gas  Co.  v.  Dickinson,  Law 

Rep.  2  Com.  PL  Div.  46,  322 

Croydon  Gas  Co.  v.  Dickinson,  Law 

Rep.  1  Com.  PI.  Div.  707,  322 

Crozier  v.  Grayson,  4  J.  J.  Marsh. 

(Ky.)  514.  182 

Crump,  Ennis  v.  6  Texas,  85,  503,  510 
Crump  r.  McMurtry,  8  Mo.  408,  265 
Cruger,  Burke  v.  8  Tex.  66,  18,  320 
Cruger  Gosman  v.  7  Hun,  60,  4 

Curan  v.   Colbert,    3  Kelly  (Ga.) 

239,  27,  378 

Culbertson  v.  Stillinger,   Taney's 

Decisions  (Campbell)  75,  195 

Curd,  Landis  v.  63  Mo.  104,  218 

Curiae  v.  Packard,  29  Cal.  194,  295 
Curl,  Thwaits  v.  6  B.  Mon.   (Ky.) 

472,  63 

Ciillum  V.  Branch  Bank  at  Mobile, 

23  Ala.  797,  282 

CuUum  V.  Emanuel,  1  Ala.  23,  261 
Cullum  V.  Gaine--,  1  Ala.  23,  82 

Cully,  City  of  Paducah  v.  9  Bush 

(Ky.)  323,  29 

Culver,  Allen  v.  3  Denio,  284,  34,  286 
Cummings     v.    Arnold,     3    Met. 

(Mass.)  486,  67 

Cummings  v.  Bank  of  Montreal, 

15  Grant's  Ch.  R.  686,  312 

Cummins  v.  Garretson,  15  Ark.  132,  505 
Cummins,  Kimble  r.  3  Met.  (Ky.) 

327,  184 

Cummings  v.  Little,  45  Me.    183, 

17,  20,  115,  370 
Cummings,  Richter  v.  60  Pa.  St. 
441,  270 


TABLE   OF   CASES. 


Xh 


Section 
Cunningham,  Mowbray  v.  Hilary 

Term,  1773,  Jones  v.  Cooper,  1 

Cowp.  227,  61 

Cunning-ham,  Osbom  v.  4  Dev.  & 

Bat.  Law  (Nor.  Car.)  423,  242 

Cunningham,  State  v.  10  La.  An. 

393,  427,  435 

Cunningham  v.  Wrenn,  23  111.  64,  350 
Cumpston    V.   McNair,    1    Wend. 

457,  82 

Currier  v.  Baker,  51  New  Hamp. 

613,  245 

Currier  v.  Fellows,  27  New  Hamp. 

366,  233,  238 
Currier,  Klein  v.  14  111.  237,  147,  149 
CuiTie,  Small  v.  2  Drew.  102,  5,  365 
Currie,  Small  v.bDe  Ges,  Macn.  & 

Gor.  141,  345 

Curtis,  Ryde  v.  8  Dow.  &  Ry.  62,  70 
Curry  v.  Bank  of  Mobile,  8  Port. 

(Ala.)  360,  333 

Curry,  Bonta  v.  3  Bush  (Ky.)  678,  385 
Curi7,  People  v.  59  111.  35,  461 

Curry's   Exrs.  Lucas  v.   2  Bailey 

Law  (So.  Car.)  403,  496 

Curtcher  v.  Trabue,  5  Dana  (Ky.) 

80,  202,  300 

Crutcher    v.     Commonwealth,     6 

Wharton,  (Pa.)  340,  425 

Crutcher,  Whitaker  v.  5  Bush  (Ky.) 

621,  355 

Crutcher,  Winham  v.  2  Teiin.  Ch. 

R.  V.  (Cooper)  535,  82 

Curts,  Cobb  v.  4  Littel  (Ky.)  235,  13 
Curtis,  Austin  v.  31  Vt.  64,  319 

Curtis  V.  Blair,  26  Miss.  309,  76 

Curtis  V.  Brown,  5  Cash.  488,  4S,  50 
Curtiss,  Brown  v.  2  New  York,  225, 

53,  86 
Curtis  V.  Dennis,  7  Met.  (Mass.)  510,  1 
Curtis  V.  Hubbard,  6  Met.  (Mass.) 

186,  337 

Curtis  V.  Moss,  2  Robinson  (La.) 

367,  127 
Curtis  V.   Tyler,  9  Paige,    Ch.   R. 

432,  282 

Cuthbert  v.  Huggins,  21  Ala.  349,  458 
Cushmg,  McCollum  v.  22  Ark.  540, 

157,  158,  169 


Section 
Cushman  v.  Dement,  3  Scam.  (111.) 

497,  147 

Cushman,  Hall  v.  16  New  Hamp. 

462,  233 

Cushman,  United  States  v.  2  Sum- 
ner, 426,  117 
Cutler,  Field  vA  Lans.  (N.Y.)  195,  206 
Cutler  V.  Hmton,  6   Rand.   (Va.) 

509,  64 

Cutler,  Jermess  v.  12  Kansas,  500, 

22,  310 
Cust,  Hope  V.  cited  in  Sheriff  v. 

Wilks,  1  East  53.  10 

Cutter  V.  Emery,  37  New  Hamp 

567,  46,  229 

Cutter  V.  Evans,  115  Mass.  27,  408 

Cutter,  Fisher  v.  20  Mo.  206,  102 

Cutter,  Irish  v.  31  Me.  536,         35,  155 
Cutter,  Singley  v.  7  Conn.  291,  72 

Cutter,  United  States  v.  2  Curtis, 

617,  475,  521 

Cutts,  Read  v.  7  Greenl.  186,        1,  172 
Cuvillier,  Bank  of  British  North 

America  v.    14    Moore's    Privy 

Council,  Cas.  187,  145 

Cuxont'.  Chandley,  3  Barn.  &  Cres. 

591,  52 

Cuyler  r.  Ensworth,  6  Paige  Ch. 

R.  22,  243 

Cuyler,  Wliite  v.  1  Esp.  200,  44 

Cuyler,  White  v.  9  Dum.  &  East 

176,  215 

Cuyler,  White  v.  6  Term  R.  176,       44 


Dabney,  Thornton  v.  23  Miss.  559,  298 
Dagle,  Succession  of,  15  La.  An. 

594,  24 

Dair  v.  United  States,  16  Wallace, 

1,  355 

Daly  V.  Commonwealth,  75  Pa.  St. 

331,  144 

Dale,  FoUmer  v.  9  Pa.  St.  83,  297 

Dale,  Robinson  v.  38  Wis.  330,  318 
Dana  v.  Conant,  30  Vt.  246,  83,  84 
Dana,  Downer  v.  17  Vt.  518,  203 

Dana,  McMillan  v.  18  Cal.  339,  403 
Dana,  Whittier  v.  10  Allen,  326,  67 
Dance  v.  Girdler,  4  Bos.  &  Pul.  34,  344 


xlvi 


ta:ble  of  cases. 


Section 
Dane  v.  Corduan,  24  Cal.  157,  208 

Danker  v.  Atwood,  119  Mass.,  146,    15 
Dann,  Smith  r.  6  Hill  (N.  Y.)  543, 

103,  167 
Dannah,  Wright  v.  2  Camp.  203,  76 
Daniel  v.  Ballard,   2  Dana  (Ky.) 

296,  229,  254 

Daniel,  Chairman  of  Schools  v.  6 

Jones'  Law  (Nor.  Car.)  444,  146 

Daniel,  Isaac  v.  8  Adol.  &  Ell.  (N. 

S.)  500,  296 

Daniel  v.  Joyner,  3  Ired.  Eq.  (Nor. 

Car.)  513,  190 

Daniel  v.  McRae,   2  Hawks  (Nor. 

Car.)  590,  225 

Daniels  v.  Barney,  22  Ind.  207,  11 

Daniels,  Thayer  v.  110  Mass.  345,  199 
Dansey,  Adams  v.  6  Bin^.  506,  46 

Dandridge,  Dibrell  v.  51  Miss.  55,  515 
Dandridge,  Spottswood  v.  4  Munf. 

(Va.)  289,  495 

Danner,   Hartman  v.   74  Pa.    St. 

36,  310 

Danforth  v.  Semple,  7  Chicago  Le- 
gal News,  203,  309 
Darnell,  Birkmyr  v.  1  Salk.  27;  Id. 

2  Ld.  Raym.  1,0S5,  40,  42,  63 

Darnall,  Buckmyr  v.  6  Mod.  248,  42 
Damall  r.  Tratt,  2  Car.  &  P.  82,  44 
Darragh,  Sale  v.  2  Hilton  (N.  Y.) 

184,  67 

Darragh,  Tenth  Natl.'  Bank  v.  1 

Hun  (N.  Y.)  Ill,  518 

Darwin,     Gillespie    v.    6    Heisk. 

(Tenn.)  21,  387 

Dart  V.  Sherwood,  7  Wis.  523,  115 

Darlington  v.  McCunn,   2  E.   D. 

Smith  (N.  Y.)  411,  62 

Darst  V.  Bates,  51  111.  439,  190,  282 
Darling,  Baraard  ?;.  11  Wendell, 

28,  489 

Darling  v.  McLean,  20  Up.  Can.  Q. 

B.  R.  372,  316 

Darter  v.  State,  5  Blackf.  (Ind.)  61,  519 
Dauber  v.  Blackney,  38  Barb.  (N. 

Y.)  432,  53 

Davidson,   Antrolus  v.  3  Merivale, 

569-79,  192,  205 

Davison,  Stull  v.  12  Bush  (Ky.)  167,  121 


Section 
Davis  V.  Banks,  45  Ga.  138,  9 

Davis  V.   Board  of    Comm'rs,    72 

Nor.  Car.  441,  194 

Davies,  Calvo  v.  8  Hmi  (N.  Y.) 

222,  24 

Davis  V.  Commonwealth  of  Stokes 

Co.,  74  Nor.  Car.  374,  194 

Davis  V.  Converse,  35  Vt.  503,  363 

Davis  V.  Copeland,  67  New  York, 

127,  106 

Davis  V.  Emerson,  17  Me.  64,  247 

Davis,  Fuller  v.  1  Gray,  612,  431 

Davis,  Hathaway  v.  33  Cal.  161,      392 
Davis,  Hayes  v.  18  New  Hamp., 

600,  233 

Davis,  Hollister  v.  54  Pa.  St.  508, 

203, 287 
Davis  V.  Hoopes,  33  Miss.  173,  120 
Davies  v.   Humphreys,  6  Mees.  & 

Wels.  153,        177,  178,  199,  251,  259 
Davis  V.  Huggins,  3  New  Hamp. 

231,  ^  208 

Davis    Sewing     Machine    Co.    v. 

Jones,  61  Mo.  409,  164 

Davis  V.  Kingsley,  13  Ct.  285,  519 

Davis  V.  Lane,  10  New  Hamp.  156,  307 
David  V.  Malone,  48  Ala.  428,  296 

Davidson,    Menard  v.  3  La.   An. 

480,  341 

Davis  V.  Mikell,  1  Freem.  Ch.  R. 

(Miss.)  548,  17,  27,  378 

Davis  Sewing  Machine  Co.  v.  Mc- 

Ginnis,  45  Iowa,  538,  100 

Davies,  Offord  t'.  12  J.  Scott  (N.  S.) 

748,  114 

Davis,  Partridge  v.  20  Vt.  499,    33,  151 
Davis  i'.  Payne.  45  Iowa,  194,  50S 

Davis    V.  People,  1   Gilman  (111.) 

409,  324 

Davis,  Pintard  v.  1  Spencer  (N.  J.) 

205,  208 

Davis,   Pintard  v.  1  Zabriskie  (N. 

J.)  632,  208 

Davis,   Preston  v.  8  Ark.  (3  Eng.) 

167,  115 

Davis,  Pritchard  v.  1  Spencer  (N. 

J.)  205,  18 

Davis,    Protection  Ins.   Co.    v.    5 
Allen,  54,  166,173 


TABLE    OF    CASES. 


xlvii 


Section 
Davies,  Royal  Ins.  Co.  v.  40  Iowa, 

469,  113 

Davis,  Sample  v.  4  Greene  (Iowa), 

117,  483 

Davis  V.  Shields,  26  Wend.  354,  75 
Davis  V.  Shields,  24  Wend.  322,  75 
Davis  V.  Smith,  6  Ga.  274,  273 

Davis    V.    Stainbank,   6    De  Gex. 

Macn.  &  Gor.  679,  210 

Davis  V.  Statts,  43  Ind.  103,  128 

Davis,  Taylor  v.  38  Miss.  493,  508 

Davis,   Thomas  v.   14  Pick.   353, 

161,  163 
Davis.  Tucker  v.  15  Ga.  573,  434 

Davis,  Willis  v.  3  Minn.  17,  370 

Davis,  Worcester  Co.  Institution  v. 

13  Gray,  531,  175 

Davis'   Exr.,   Stewart  v.   18  Ind. 

74,  352 

Daviess  Co.  Sav.  Ass'n  v.  Sailor,  63 

Mo.  24,  218 

Davies  v.   Stainbank,    6  De   Gex, 

Macn.  &  Gor.  679,  312,  322 

Davies,  Turner  v.  2  Esp.  478,  229 

Davidson  v.  Farrell,  8  Minn.  258,  514 
Davidson,  Pope  v.  5  J.  J.  Marsh. 

(Ky.)  400,  191 

Davy,  Dry  v.  2  Perry  &  Dav.  249,  98 
Davey  r.  Prendergrass,   5  Barn.  & 

Aid.  187,  327 

Davids,  Jones  v.  4  Russell,  277,  273 
Dawley,  Fernald  v.  26  Me.  470,  226 
Dawson  v.  Bank  of  Whitehaven, 

Law  Rep.  4  Ch.  Div.  639,  22 

Dawson,   Cochran  v.  1  Miles  (Pa.) 

276,  86 

Dawson,  Colbourn  v.  10  Cora.  B. 

(1  J.  Scott)  765,  73 

Dawson  v.  Pettway,  4  Dev.  &  Batt. 

Law  (Nor.  Car.)  396,  225 

Dawson,   Toomer    v.   Cheves  (So. 

Car.)  68,  66 

Dawson,  Wilson  v.  52  Ind.  513  376 
Day  V.  Biliingsby,   3  Bush  (Ky.) 

157,  516 

Day,  Bishop  v.  13  Vt.  81,  192 

Day,  Chase  v.  17  Johns.  114,  62,  63 
Day  v.  Elmore,  4  Wis.  190,  70,  82,  84 
Day,  FUnt  v.  9  Vt.  345.  151 


Section 
Day,  Holmes  v.  108  Mass.  563,  242 

Day,  James  v.  37  Iowa,  164,  24 

Day,  Marsh  v.  18  Pick.  321,  106 

Day,  Pickering  v.  2  Delaware  Ch. 


R.  333, 


294,  478 


Day,  Pickering  v.  3  Houston  (Del.) 

474,  294,  368,  457 

Day  V.  Swann,  13  Me.  165,  179 

Deadman,   Ellis  v.  4  Bibb  (Ky.) 

462,  66 

Dean,  Canithers  v.   11  Smedes  & 

Mar.  (Miss.)  178,  382 

Dean,   Morton  v.  13  Met.  (Mass.) 

335,  66,  76 

Dearborn  r.  Parks,  5  Greenl.  (Me.) 

81,  52 

Deardorff  v.  Foreman,  24  Ind.  481,  354 
Deal  V.  Cochran,  66  Nor.  Car.  269,  296 
Deacon,  Pearl  v.  24  Beavan,  186,  291 
Deacon,  Pearl  v.  1  De  Gex  &  Jones 

461,  291 

De  Beil  v.  Thomson,  3  Beav.  469,  66 
Deberry  v.  Adams,  9yerg.  (Tenn.) 

52,  18 

Deblois  V.  Earle,  7  Rhode  Is.  26,  90 
Dechaums,  Reynolds  v.  24  Tex.  174,  4 
De  Castro  v.  Clarke,  29  Cal.  11,  403 
Decker  v.  Anderson,  39  Barb.  (N. 

Y.)  316,  420 

'Decker  v.  Gaylord,  8  Hun  (N.  Y.) 

110,  90 

Decker  v.  Judson,  16  New  York,  439,  29 
DeCottes  v.  Jeffers,  7  Florida,  284,  193 
Dederer,  Yale  v.  18  N.  Y.  265,  4 

Dedrick,  Cooper  v.  22  Barb.  (N. 

Y.)  516,  33,  70,  537 

Dedham    Bank    v.   Chickering,  3 

Pick.  335,  145 

Dedham    Bank    v.   Chickering,   4 

Pick.  314,  479 

Deering  v.  Earl  of  Winchelsea,   2 

Bos.  &  Pul.  270,  221 

Deering  v.  Earl  of  Winchelsea,    1 

Cox,  318,  221 

Deforest,  Drakeley  v.  3  Conn.  272,  49 
De  Graw,  Oshiel  v.  6  Cowen,  63,  93 
Deitzler  v.  Mishler,  37  Pa.  St.  82,  25 
Deifendorf,  Elwood  v.  5  Barb.  (N. 

Y.j  398,  181 


xlviii 


TABLE   OF    CASES. 


Section 
De  Jarnete,  Tyus  v.  26  Ala.  280, 

234,  261 
Delaplaine    v.    Hitchcock,    4  Ed- 
ward's Ch.  321,  27 
Delaney  v.  Tipton,  8  Hayw.  (Tenn.) 

14,  192 

Delacour  v.  Caulfield,  1  Irish  Com, 

Law  R.  669,  459 

Dement,  Cushman  v.  8  Scam.  (111.) 

497,  147 

Demarest,  Chelmsford  Company  v. 

7  Gray,  1,  140,  518 

Dempsey  v.  Bush,  18  Ohio  St.  376,   270 
Dening-,  Taylor  v.  3  Nev.  &  Per. 

228,  75 

Denison  v.  Gibson,  24  Mich.  187, 

21,  22,  104,  201 
Dennison  v.  Soper,  83  Iowa,  183,  176 
Dennison,  Stone  v.  13  Pick.  1,  38 

Dennett,  Ingalls  v.  6  Greenl.  (Me.) 

79,  176 

Dennie,  Harrington  v.  13  Mass.  93,  430 
Denny,  Crowder  v.  3  Head  (Tenn.) 

539,  253 

Denton,  Fairlie  v.  8  Barn.  &  Cress. 

395,  52 

Denton,  Fairlie  v.  2  Man.  &  Ry. 

353,  52 

Demass,  Reusch  v.  34  Mich.  95,       418 
Dennard  v.  State,   2  Kelly  (Ga.) 

137,  432 

Dennett,  Haines  V.  11  New  H.  180,    333 
Dennett,  McCann  v.  13  New  Hamp. 

528,  295 

Dennis,  Courtis  v.   7  Met.  (Mass.) 

510,  1,  163 

Dennis  v.  Gillespie,  24  Miss.  581,      228 
Dennis,  Mayor  of  Cam  bridge  v.  Ell. 

Black.  &  Ell.  660,  141 

Denson  v.  Miller,  33  Ga.  275,  504 

De  Peyster,  Wheelwright  v.  4  Ed- 
wards' Ch.  R.  232,  822 
Depriest,  Franklin's  Admr.   v.   13 

Gratt.  (Va.)  257,  30 

Deputy,  Redman  v.  26  Ind.  338,       309 
Dering,  Baker  v.  8  Adol.  &  Ell. 

94,  75 

Derrickson,  Waples  v.  1  Harring- 
ton (Del.)  134,  435 


Section 
DeiTy  Bank  v.  Baldwin,  41  New' 

Hamp.  434,  28 

Derry  Bank,    Heath  v.   44    New 

Hamp.  174,  28,  209 

Derossett  v.  Bradley,  63  Nor.  Car. 

17,  245 

Den-ickson,  Dickerson  v.  39  111.  574,  171 
Desdver,  Estate  of,  9  Phila.  (Pa.) 

302,  114 

Detroit  v.   Weber,   26  Mich.  284, 

474,  476 
Detroit  v.  Weber,  29  Mich.  24,  468 
Deuil  V.  Martel,  10  La.  An.  643,  300 
DeVnes  v.  Conkhn,  22  Mich.  255,  4 
Devlin  v.  Woodgate,  34  Barb.  (N. 

T.)  252,  53 

Devon,  Carpenter  v.  6  Ala.  718,  27 

Devendorf,  Albany  City  Fire  Ins. 

Co.  V.  43  Barb.  (N.  Y.)  441,  317 

Devore  v.  Mundy,  4  Strobhart  Law 

(So.  Car.)  15,  315 

Devers  r.  Ross,  10  Gratt.  (Va.)  252,  327 
Devinney  v.  Lay,  19  Mo.  646,  503 

DeWitt  V.  Bigeiow,  11  Ala.  480,      296 
De  Witt,  Mitchell  v.  25  Texas  (Sup- 
plement) 180,  227 
Dewey,  Burgess  v.  33  Vt.  618,          310 
Dewey  v.  Reed,  40  Barb.  (N.  Y.) 

16,  331 

^Dewees,  Scott  v.  2  Texas,  153,  510 

Dexter  v.  Blanchard,  11  Allen,  365,  44 
De  Young,  Clymer  v.  54  Pa.   St. 

118,  49,  52 

Diamond  v.  Petit,  3  La.  An.  37,  404 
Dibrell  v.  Dandridge,  51  Miss.  55,  515 
Dickerson  v.  Turner,  15  Ind.  4,  156 
Dick,  Lee  v.  10  Peters,  482,  157,  159 
Dick  V.  Stoker,   1  Devereux  Law 

(Nor.  Car.)  91,  426 

Dickey  v.  Rogers,  19  Martin  (La.) 

7  N.  S.  588,  178,  198 

Dickson  v.  McPherson,  3  Grant's 

Ch.  Appl.  R.  185,  361 

Dickason  v.  BeU,  13  La.  An.  249,  125 
Dickerson,  Bessinger  v.    20  Iowa, 

260,  481 

Dickei'son  v.  Commissioners  of  Rip- 
ley Co.  6  Ind.  128, 

17,  209,  210,  301,  S27 


TABLE   OF    CASES. 


xlix 


Section 
Dickerson  v.  Derrickson,    39    111. 

574,  171 

Dickerson,  Placer  County  v,  45  Cal. 

12,  459, 521 

Dickerson,  Thompson  v.  22  Iowa, 

360,  462 

Dickerson,  Toomer  v.  37  Ga,  428,  389 
Dickinsoti  v.  Codwise,  1  Sandford's 

Ch.  R.  214,  22 

Dickinson,  Croydon  Gas  Co.  v.  Law 

Kep.  1  Com.  PI.  Div.  707,  322 

Dickinson,    Croydon    Gas    Co.  v. 

Law    Kep.    2    Com.    PI.    Div. 

46,  322 

Dickinson,  Hunter  v.  10  Humph. 

(Tenn.)  37,  170 

Dickinson,  Morley  v.  12  Cal.  561,  378 
Dickinson,    Smith  v.    6    Humph. 

(Tenn.)  261,  35 

Dierker,  Britton  v.  46  Mo.  591,  331 
Dietrich  v.  Mitchell,  43  111.  40,  149 

DifFenderfer,  Winder  v.  2  Bland's 

Ch.  (Md.)  166,  260 

Dikeman,  People  v.  3  Abb.  Rep. 

Om.  Cas.  520.  485 

Dillon  V.  Holmes,  5  Nebraska,  484,  208 
Dillon  V.  Russell,  5  Nebraska,  484,  296 
Dillon,   St.  Albans   Bank  v.  30  Vt. 

122,  128 

Dillingham  v.  Jenkins,  7  Smedes 

&  Mar.  (Miss.)  479,  359 

Dillingham,     Montgomery     r.     3 

Smedes  &  Mar.    (Miss.)  647, 

296,  519 
Dill,  Root  V.  38  Ind.  169,  507 

Dills  V.  Cecil,  4  Bush  (Ky.)  579,  382 
Dilts  V.  Parke,   1  &outh.   (N.  J.) 

219,  49 

Dilts,  Stout  V.  1  South.  (N.J.)  218,  277 
Dillahunty,  Brown  v.  4  Smedes  & 

Mar.  (Miss.)  713,  429 

Dinkins  v.  Bailey,  23  Miss.  284,  272 
Dinsmore,  Hilton  v.  21  Me.  410,  49 
District    Township    of    Union   v. 

Smith,  39  Iowa,  9,  477,  478 

Ditmars  r.  Commonwealth,  47  Pa. 

St.  335,  481 

Dixon  V.  Caskey,  18  Ala.  97,  458 

Dixon  V.  Dixon,  31  Vt.  450,  354 

D 


Section 
Dixon  V.  Ewing's  Admrs.  3  Ohio, 

280,  378 

Dixon  V.  Frazee,  E.  D.  Smith  (N. 

Y.)  32,  62,  64 

Dixon  V.  Hatfield,  2  Bing.  439,  63 

Dixon,  Montpelier  Bank  v.  4  Vt. 

587,  381 

DLxon,  Sykes  v.  9  Adol.  &  Ell.  693,  71 
Doak,  Smith  v.  3  Tex.  215,  18,  349 
Doane  v.  Telegraph  Co.,   11   La. 

An.  504,  108 

Dobbins,  Jordon  v.  122  Mass.  168,  114 
Dobbs  r.  Justices,  17  Ga.  624, 

478,  485,  521 
Dobson   V.   Prather,   6    Ired.  Eq. 

(Nor.  Car.)  31,  379 

Dobyns  v.  McGovem,  15  Mo.  662,  498 
Dock  V.  Hart,  7  Watts  &  Serg.  172,  38 
Dodd,  Craft  v.  15  Ind.  380,  507 

Dodd,  Governor!'.  81  111.  162,  453 

Dodd  r.Winn,  27  Mo.  501,  383 

Dodgson,  Johnson  v.  2  Mees.  & 

Wels.  653,  66,  75 

Dodge,  Johnson  v.  17  111.  433,  76 

Dodge  r.  Lean,  13  Johns.  508,  67 

Dodge,  Mackay  v.  5  Ala.  388,  99 

Dodge,  Thomas  v.  8  Mich.  51,  67,  83 
Dodge  V.  Van  Lear,  5  Cranch  (C. 

C.)  278,  •  66 

Doepfner  v.  State,  36  Ind.  Ill,  480 
Dohlonde,  Boykin  v.   1  Sel.  Cas. 

Ala.  502,  62 

Doidge,  Melville  v.  6  Man.  Gr.  & 

Scott,  450,  479 

Dolby  V.  Jones,   2  Dev.  Law  (Nor. 

Car.)  109,  391 

Dole  P.  Yoimg,  24  Pick.  250,  175 

Doles,  Jones  v.  3  La.  An.  588,  524 

Doman,    Rindskopf  v.  28  Ohio  St. 

516,  119,  300 

Donner,  Frickee  v.  35  Mich.  151,  319 
Donaldson,  Yates  v.  5  Md.  389,  17 

Doneghy,  Boiling  v.  IDuvall  (Ky.) 

220,  254 

Donley  v.  Bush,  44  Texas,  1,  155 

Don  ally  v.  Wilson,  5  Leigh  (Va.) 

329,  291 

Doody,  Carpenter  v.  1  Hilton  (N. 

Y.)  465,  485,  487 


1 


TABLE   OF    CASES. 


Section 
Doolittle  V.  Dwight,  2  Met.  (Mass.) 

561,  181,  237 

Doolittle  V.  Naylor,  2  Bosw.  (N. 

Y.)  206,  51 

Dorman  v.  Bigelow,  1  Fla.  281,    73,  74 
Dorman  v.  Executor  of  Richard,  1 

Florida,  281,  68 

Dorsey,  Neptune  Ins.  Co.  v.  3  Md. 

Ch.  K.  334,  266 

Dorsey  v.  Wayman,  6  Gill  (Md.) 

59,  392 

Dorwin,  Austin  v.  21  Vt.  38, 

301,  306,  309 
Dorr,   Supei-visors  of  Albany  v.  7 

Hill  (N.Y.)  583,  477 

Doty  V.  Ellsbree,  11  Kansas,  209,    452 
Dougherty,  Houston  v.  4  Humph. 

(Tenn.)505,  515 

Dougherty,  McDougald  v.  14  Ga. 

674,  271 

Dougherty  v.  Peters,  2  Robinson 

(La.)  534,  487 

Dougherty  v.  Richardson,  20  Ind. 

412,  27 

Doughty  V.  Bacot,  2  Desaussure, 

Eq.  (So.  Car.)  546,  20 

Doughty  V.  Savage,  28  Ct.  146,  350, 366 
Douglass,  Atlanta  National  Bank 

V.  51  Ga.  205,  ,  338 

Douglass,  Aitcher  v.  Denio,  509,      127 
Douglass,  Bank  v.  4  Watts  (Pa.) 

95,  283 

Douglas,     Commonwealth     v.    11 

Bush  (Ky.)  607,  433 

Douglas,  Irael  v.  1  H.  Blackstone, 

239,  52 

Douglas,  Municipal  Corp.  of  East 

Zora  V.   17  Grant's  Ch.  R.  462, 

365,  474 
Douglass,  Glazier  v.  32  Ct.  393,  374 
Douglass  V.  Howland,  24  Wend. 

35,  68,  70,  171,  524 

Douglass  V.  Rathbone,  5  Hill,  143,  168 
Douglass  V.   Reynolds,    7  Peters, 

113,      78,  80,  1:34,  157,  163,  168,  384 
Douglass,  Reynolds  v.  12  Peters, 

497,  172,  173,  175 

Douglass  V.  Spears,  2  Nott  &  McC 

(So.  Car.)  207,  75 


Section 
Douglass  V.  State,  44  Ind.  67,  305 

Dousay,  Mason  v.  35  III.  424,  53 

Dow,  Greely  v.  2  Met.  (Mass.)  176, 

301,  306 
Dow,  Hetfield  v.  3  Dutch.  (N.  J.) 

440,  62,  63 

Dow,  Thomas  v.  33  Me.  390,  296 

Dow,  Woolford  v.  34  III.  424,  307 

Dowbiggen  v.  Poume,  2  Younge  & 

Colly er  (Exchequer)  462,  270 

Dowell,  Silvey  v.  53  111.  260,  234 

Dowling,  Bennett  v.  22  Texas,  660,  187 
Downs,  Erwin  v.  15  New  York,  375,  16 
Downs,  Muller  v.  94  United  States, 

444,  195 

Downer  v.  Baxter  30  Vt.  467,  187 

Downer  v.  Dana,  17  Vt.  518,  203 

Downer,  Dunham  v.  31  Vt.  249,  27,  210 
Downer,  Sylvester  v.  20  Vt.  355,  153 
Downer,  Sylvester  v.  18  Vt.  32,  111 
Downer,  Sylvester  v.  18  Vt.  32,  169 
Downer,   Woodstock    Bank  v.  27 

Vt.  539,  106,  170,  175 

Downey,  Blake  v.  51  Mo.  437,  176 

Downey  r.  Hinchman,  25  Ind.  453,  44 
Downing,  Rice  v.  12  B.  Mon.  (Ky.) 

44,  205 

Dox  V.  Postmaster  General,  1  Pe- 
ters, 318,  474 
Doyal,  State  v.  12  La.  An.  653,        426 
Doyle  V.  White,  26  Me.  341,  62 
Dozier,  Bethune  v.  10  Ga.  235, 

338,  504 
Dozier  v.  Lea,  7  Humph.  (Tenn.) 

520,  18 

Dozier,  Lea  v.  10  Humph.  (Tenn.) 

447,  317 

Dozier  v.  Lewis,  27  Miss.  679,  261 

Dubois,  Grove  v.  1  Term  R.  112,  57 
Dubuisson  v.  Folkes,  3J  Miss.  432, 

304,  305 
Ducker  v.  Rapp,  9  Jones  &  Spen- 
cer (N.  Y.)  235,  172,  375 
Ducker  v.  Rapp,  67  New  York, 

464,  304,  308,  322 

Dudley,  Beebe  v.  26  New  Hamp. 

249,  159,  173 

Dudgeon,  City  National   Bank  of 
Ottawa  V.  65  III.  11,  275 


TABLE   OF    CASES. 


1i 


Section 
Duerive,  Ledou  v.  10  La.  An.  7,  232 
Duff  V.  Barrett,  15  Grant's  Ch.  R. 

632,  325 

Duff  V.  Ban-ett  17  Grant's  Ch.  R. 

187,  325 

Dufau  V.  Wright,  25  Wend.  336,  90 
Duffee,  Henderson  v.  5  New  Hamp. 

38,  252 

Duffield,  Coe  v.  7  Moore,  252,  73 

Dugan  V.  Sprague,  2  Ind.  600,  319 

Duhamp  r.  Nicholson,  14  Martin 

(La.)  2  N.  S.  672,  29 

Duke  of  Marlborough,  Kirby  v.  2 

Maule  &  Sel.  18,  135, 137 

Dullens,  Brunton  v.  1  Foster  &  Fin. 

450,  62 

Dumas  v.  Patterson,  9  Ala.  484,  466 
Dumont,  Harbert  v.  3  Ind.  346, 301,  309 
Dumont  v.  Williamson,  18  Ohio  St. 

515,  16 

Dunbar  v.  Brown,  4  McLean,  166,  168 
Duncan,  Cowan  v.  Meigs  (Tenn.) 

470,  227 

Duncan,  Evans  v.  1  Tyrw.  283,  38 

Duncan  v.  Keiffer,  3  Bin.  (Pa.)  126,  194 
Duncan  v.  Lowndes,  3  Camp.  478,  10 
Duncan,  Mitchell  v.  7  Florida,  13,  12 
Duncan  v.  State,  7  La.  An.  377,  474 
Duncan,  Tinkum  v.  1  Grant's  Cas. 

(Pa.)  223,  84 

Duncan,    Wharton  v.   83  Pa.   St. 

40,  370 

Duncomb  v.  Tickridge,  Aleyn,  94,  44 
Dnndas  v.  Sterling,  4  Pa.  St.  73,  361 
Dunham  v.  Countryman,  66  Barb. 

(N.  Y.)  268,  313 

Dunham's  Exrs.  Stothoff  v.  4  Har- 
ris (N.  J.)  181,  248,  252 
Dunham  v.  Downer,  31  Vt.  249,  27,  210 
Dunklee,     Hamilton    v.    1    New 

Hamp.  172,  428 

Dunlap,  Caston  v.  Richardson  Eq. 

Cas.  (So.  Car.)  77,  208 

Dunlap,   Fear  v.   1   Greene  (loa.) 

331,  147,  173 

Dunlap  V.  Foster,  7  Ala.  734,  406 

Dunlap  V.  Gordon,  10  La.  An.  243,  102 
Dunlap  V.  McNeU,  35  Ind.  316,  115 
Dunlap,  People  v.  13  Johns.  437,     502 


Section 
Dunlap  V.  Thome,   1  Richardson 

(So.  Car.)  213,  50 

Dunn,  Kellogg  v.  2  Met.  (Ky.)  15,  153 
Dunn,  Leeds  v.  10  New  York.  469,  103 
Dunn,  Maclean  v.  4  Bing.  722,  76 

Dunn  V.  Slee,  1  Moore,  2  244 

Dunn  V.  Smith,  12  Smedes  &  Mar. 

(Miss.)  602,  849 

Dunn  V.  Sparks,  1  Ind.  397,  240 

Dunn  V.  Sparks,  7  Ind.  490,  225 

Dunn,  Spooner  v.  7  Ind.  81,  50 

Dunn,   State  r.  11   La.  An.  549, 

348,  366,  367 
Dunn,  Supervisors  of  Washington 

Co.  V.  27  Gratt.  (Va.)  608,     444,  522 
Dunn  V.  Wade,  23  Mo.  207,  225 

Dunn  V.  West,  5  B.  Mon.  (Ey.) 

376,  46 

Dunning  v.  Roberts,  35  Barb.  (N. 

Y.)  463,  75 

Dunphy  v.  Whipple,  25  Mich.  10,  458 
Dunsford,  Eyre  v.  1  East,  318,  58 

Duphorn,  Baugher's  Exrs.  v.  9  Gill. 

(Md.)314,  291 

Duren,  Aiken  v.  2  Nott  &  McCord 

(So.  Car.)  370,  54 

Durham,  Manrow  v.  3  Hill,  584,  74 
Durham  v.  Manrow,  2  New  York, 

533,    -  53 

Durham,  Van  Orden  v.  35  Cal.  136, 284 
Durkee,  Titus  v.  12  Up.  Can.  C.  P. 

R.  367,  347 

Durkee,  Whitridge  v.  2  Md.  Ch.  R. 

442,  205 

Dussol  I'.  Bruguiere,  50  Cal.  456,  2.55 
Dutchman  v.  Tooth,  7  Scott,  710,  70 
Dutchman  v.  Tooth,  5  Bing.  (N. 

C.)  577,  70 

Duval,  Croughton  v.  3  Call  (Va.) 

69,  208 

Duval  V.  Trask,  12  Mass.  154,  67 

Drake,   Edmondston  v.  5  Peters, 

624,  157, 346 

Drake  v.  Flewellan,  33  Ala.  106,  44 
Drake,  Seaman  v.  1  Caines'  Rep. 

9,  126 

Drake  v.  Smythe,  44  Iowa,  410,  325 
Drake,   Taylor  r.  4  Strobh.   (So. 

Car.)  431,  60,  61 


lii 


TABLE    OF   CASES. 


Section 
Drakely,  Gist  v.  2  Gill  (Md.)  330, 

147,  151 
Drakeley  v.  Deforest,  3  Conn.  272,  49 
Drakeley,  Monson  r.  40  Ct.  552,  223 
Draughan    v.    Bunting-,    9    Ired. 

Law  (Nor.  Car.)  10,  47,  245 

Draper  v.  Pattani,  2  Spears,  (So. 

Car.)  292,  66 

Draper  v.  Fob,  2  Spears  (So.  Car.) 

292,  75 

Draper  v.  Romeyn,  18  Barb.  (N. 

Y.)  166,  296 

Draper  v.  Snow,  20  New  York,  331,  73 
Draper  v.  Weld,  13  Gray,  580,  303 

Dressier,  Fitzgerald  v.  7  Com.  B. 

(J.  Scott)  N.  S.  374,  51,  54 

Drew  V.  Lockett,  32  Beavan,  499,  276 
Drinker,  Stern  v.  2  E.  D.  Smith, 

(N.  Y.)  401,  50 

DriscoU  V.  Blake,  9  Irish  Ch.   R. 

356,  29 

Driskill  v.  Board  of  Commissioners, 

53  Ind.  532,  505 

Driskell  v.  Mateer,  31  Mo.  325,  212 
Drummond,  Boydell  v.  11  East,  142,  66 
Drummond  v.  Prestman,  12  Whea- 

ton,  515,  96,  97,  520 

Druett's  Admi-.  Peck  v.   9  Dana 

(Ky.)  486,  366 

Druly,  State  v.  3  Ind.  431,  484 

Drury  v.  Fay,  14  Pick.  326,  536 

Drury  v.  Fay,  14  Pick.  26,  213 

Drury,  Paine  v.  19  Pick.  400,  109 

Drury,  State  v.  36  Mo.  281,  461 

Dry  V.  Davy,  2  Perry,  &  Dav.  249,  98 
Dwarris,  Wood  v.  11  Exch.  493,  352 
Dwinnell.  Keith  v.  38  Vt.  286,  134 

Dwight,  Doolittle  v.  2  Met.  (Mass.) 

561,  181,  237 

Dwight,  Lewis  v.  10  Ct.  95,  93,  132 
Dwight  V.  Linton,  3  Robinson  (La.) 

57,  153,  352 

Dwight  V.  Pomeroy,  17  Mass,  308,  352 
Dwight  V.  Williams,  4  McLean, 

581,  84 

D'Wolf  V.  Rabaud,  1  Peters,  476, 

46,  60,  72 
D'Wolf,  Quintard  v.  34  Barb.  (N. 

Y.)  97,  48 


Section 
Dye,  Cockrill  v.  33  Mo.  365,  513 

Dye  V.  Dye,  21  Ohio  St.  86,  392 

Dye  V.  Mann,  10  Mich.  291,  179 

Dyer,  Cole  v.  1  Cromp.  &  Jer.  461, 

68,  71 
Dyer  v.  Gibson,  16  Wis.  508,  53 

Dyer  v.  Graves,  37  Vt.  369,  38 

Dyer,  Miller  v.  1  Duvall  (Ky.)263, 

379,  382 

Dyer,  Wright  v.  48  Mo.  525,  172 

Dykes,  Pilgrim  v.  24  Texas,  383,      325 

Dykes  v.  Townsend,  24  New  York, 

57,  •  76 


Eagles  V.  Kern,  5  Wharton  (Pa.) 

144,  530 

Eales  V.  Eraser,  6  Man.  &  Gr.  755.  27 
Earle,  Deblois  v.  7  Rhode  Is.  26,  90 
Eaiie,   Evans  v.   1   Hurl.   &   Gor. 

1,  146 

Early,  Cecil  v.  10  Gratt.  (Va.)  198, 

29,444 
Earl  of  Winchelsea,  Deering  v.  2 

Bos.  &  Pul.  270,  221 

Earl  of  Winchelsea,  Deering  v.  1 

Cox,  318,  221 

Eason  v.   Petway,  1  Dev.  &  Bat. 

Law  (Nor.  Car.)  44,  82 

Easter  v.  White,  12  Ohio  St.  219,  47 
Eastern    Union    Railway  Co.    v. 

Cochrane,  9  Wels.  Hurl.  &  Gor. 

197,  101 

East  India  Company  v.  Boddam,  9 

Vesey,  464,  118 

East  India  Company,  Law  v.  4  Ve- 
sey, 824,  79,  371 
East    River    Bank    v.  Rogers,   7 

Bosw.  (N.  Y.)  493,  170 

Eastman  v.  Bennett,  6  Wis.  2-32,  70 
Eastman  v.  Foster,  8  Met.  (Mass.) 

19,  282 

Eastman,  Joslyn  v.  46  Vt.  258,  295 
Eastman  v.   Norton  v.   4  Greenl. 

(Me.)  521,  163,  319 

Eastman    v.     Plumer,     32     New 

Hamp.  238,  289 

Eastwood  V.   Kenyon,  3  Perry  & 

Dav.  276,  58,  77 


TABLE   OF    CASES. 


liii 


Section 
Eastwood  V.  Kenyon,   11  Adol.  & 

Ell.  438,  9,  58 

Eaton  V.  Benefield,  2  Blackf.  (Ind.) 

52,  494 

Eaton  V.  Lambert,  1  Nebraska,  339,  182 
Eaton  V.  Hasty,  6  Nebraska,  419,  260 
Eaton  V.  Mayo,  118  Mass.  141,  87 

Eberhardt  v.  Wood,  2  Tenn.  Ch. 

R.  (Cooper)  488,  240 

Ecker  v.  McAllister,  45  Md.  290,  77 
Eckert,  Beckley  v.  3  Pa.  St.  292,  36 
Eckford's  Exrs.  Mann  v.  15  Wend. 

502,  170 

Eckford's  Exrs.  United  States  v. 

1  Howard  (U.  S.)  250,  294 

Eddy  V.   Heath's    Garnishees,   31 

Mo.  141,  478 

Eddy  V.  Roberts,  17  111.  505,  48 

Eddy  V.  Stanton s,  21  Wend.  255,  84 
Eddy  V.  Sturgeon,  15  Mo.  198,  293 

Eddy  V.  Traver,  6  Paige  Ch.  R.  521, 

262,  270 
Edelen  v.  Gough,  5  Gill,  103,  68 

Eder,  Heynemann  v.  17  Cal.  433,  407 
Edge  V.  Frost,  4  Dow.  &  Ry.  243,  63 
Edgerly    v.     Emerson,     23    New 

Hamp.  555,  264 

Edgerton,  Clay  v.  19  Ohio  St.  549,  170 
Edgerton,  Yale  v.  14  Minn.  194,  9 

Edmonds,   Goring  v.   3  Moore  & 

Payne,  259,  171 

Edmonds,  Goring  v.  6  Bing.  94,  171 
Edmondston  v.   Drake,  5  Peters, 

624,  157,  346 

Edmunds,  Price  v.  5  Man.  &  Ryl. 

287,  321 

Edmunds,   Price    v.   10    Bam.   & 

Cress.  578,  321 

Edney,  Reynolds  v.  8  Jones  Law 

(Nor.  Car.)  406,  173 

Edson,  Fletcher  v.  8  Vt.  294,  190 

Edwards,  Bailey  v.  4  Best  &  Smith, 

761,  328 

Edwards,  Bruce  v.  1  Stew.  (Ala.) 

11,  17,  206 

Edwards  v.  Coleman,  6  T.  B.  Mon. 

(Ky.)  567,  296,  299 

Edwards,  Cowell  v.  2  Bos.  &  Pull. 

268,  •  252 


Section 
Edwards,  Frank  v.  8  Wels.  Hurl. 

&  Gor.  214,  341 

Edwards  v.  Gunn,  3  Ct.  316,  426 

Edwards  v.  Jevons,  8  Man.  Gr.  & 

Scott,  438,  70,  72 

Edwards  v.  Kelly,  6  Maule  &  S. 

204,  49,  51 

Edwards,  People  v.  9  Cal.  286,  442 
Edwards,  Skip  v.  9  Md.  438,  346 

Edwards,   State  Bank  v.  20  Ala. 

512,  378 

Edwards,  Wilson  v.  6  Lansing  (N. 

Y.)134,  102 

Egbert,  Harrinaan  v.  36  Iowa,  270,  504 
Ege  V.  Barnitz,  8  Pa.  St.  304,  84 

Egerton  v.  Alley,  6  Ired.  Eq.  (Nor. 

Car.)  188,  204 

Eggleston,  Paw  Paw  v.  25  Mich. 

36,  268 

Eichelberger,   Markell  r,   12  Md. 

78,  188,  193 

Eichelberger  v.   Morris,   6   Watts 

(Pa.)  42,  124 

Eilbert  v.  Finkbeiner,  68  Pa.  St. 

243,  149 

Eisenbeis,  Comfort  r.  11  Pa.  St.  13,  189 
Ekel,    Snevily   v.   1  Watts    Serg. 

(Pa.)  203,  154 

Ela,  New  Hampshire  Savings  Bank 

V.  11  New  Hamp.  335,  299,  305 

Ela,  Webster  v.  5  New  Hamp.  540,  67 
Elam  V.  Heirs  of  Barr,  14  La.  An. 

682,  13 

Elam  V.  Rawson,  21  Ga.  139,  272 

Elbert  v.  Jacoby,   8    Bush    (Ky.) 

542,  463 

Elder   v.   Commonwealth,   55  Pa. 

St.  485,  278 

Elder  v.  Warfield,  7  Harr.  &  Johns. 

(Md.)  391,  62,  63 

Ellenwood  v.  Fults,  63  Barb.  321,  9 
EUett  r.  Britton,  10  Tex.  208,  68 

Elfp  V.  Gadsden,  2  Rich.  (So.  Car.) 

373,  66 

Eliff,  Garratt  v.  4  Humph.  (Tenn.) 

323,  515 

Elkin  V.  People,  3  Scam.  (III.)  207,  458 
Elkins,   Hatch  v.  65  New  York,  . 

489,  518 


liv 


TABLE   OF   CASES. 


Section 
Klkins  V.  Heart,  Fitzg.  202,  56 

EUedge,  Cannan  v.  40  Iowa,  409,     164 
Ellery,  Gould  v.  39  Barb.  (N.  Y.) 

163,  'j'j 

ElUs  I'.  Bibb,  2  Stew.  (Ala.)  63, 

296,  300 
Ellis  V.  Brown,   6  Barb.    (N.  Y.) 

282,  150 

Ellis  V.  Deadman,  4  Bibb  (Ky.)  462,  66 
Ellis,  Euibree  v.  2  Johns.  119,  186 

Ellis  r.  Emmanuel,  Law  Rep.    1 

Excli.  Div.  157,  219 

Ellis,  Fordyce  v.  29  Cal.  96,  325 

Ellis  V.  Hull,  23  Cal.  160,  404 

Ellis  r.  McCormick,   1  Hilton  (N. 

Y.)  313,  339 

Elliott  V.  Boaz,  18  Ala.  5-35,  361 

Elliott  V.  Giese,  7  Harr.  &  Johns. 

457,  68 

Elliott  V.  Gray,   4  Stew.  &  Port. 

(Ala.)  168,  405 

Elliott  V.  Harris,  9  Bush  (Ky.)237,  213 
Elliott  V.  Hayes,  8  Gray,  164,  110 

Elliott,  Perkins  v.  8  C.  E.  Green, 

526,  4 

Flllicott  V.  The  Levy  Court,  1  Harr. 

&  Johns.  (Md.)  359,  447 

■  Ellison  V.  Jackson,  12  Cal.  542,  68 

Ellison,  Wiltmer  t'.  72  111.  301, 

309,  327 
Ellsbree,  Doty  ^7.  11  Kansas,  209,  452 
Elwood  V.  Deifendorf,  5  Barb.  (N. 

Y.)  398,  181 

Ellsworth,  Virden  v.  15  Ind.  144, 

115,  172 
Elmendorph    v.  Tappen,  5  Johns 

176,  109 

Elmore,  Day  v.  4  Wis.  190,     70,  82,  84 
Elmore,  Sailly  v.  2  Paige  Ch.  R. 

497,  209.  296 

Elting  V.  Vanderlyn,  4  Johns.  237,      8 
Ely,  Manhattan  Gas  Light  Co.  v. 

39  Barb.  (N.  Y.)  174,  98 

Ely,    Thrasher    v.    2    Smedes    & 

Marsh.  (Miss.)  139,  170 

Ely,  Ward  v.  1   Dev.    Law  (Nor. 

Car.)  372,  88 

Emanuel  CuUum  v.  1  Ala.  23,  261 

Embree  v.  EUis,  2  Johns.  119,  186 


Section 
Emerson,  Davis  v.  17  Me.  64,  247 

Emerson,     Edgerly    v.    23    New 

Hamp.  555,  264 

Emerson  v.  Slater,  22  Howard  (U. 

S.)  28,  46,  56 

Emeiy  v.  Clarke,  2  J.  Scott  (N.  S.) 

582,  189 

Emery,  Cutter  v.  37  New  Hamp. 

567^  46,  229 

Emery  v.  Richardson,  61  Me.  99.  303 
Emanuel,  Ellis  v.  Law  Rep.  1  Exch. 

Div.  157,  219 

Emmerson  v.  Heelis,  2  Taunt.  38,  76 
Emmerson,  Locknane  v.  11  Bush 

(Ky.)  69,  331 

Emmott  V.  Keams,  5  Bing.  (N.  C.) 

559,  70,  73 

Emmons  v.  Meeker,  55  Ind.  321,  333 
Eneas  v.  Hoops,  10  Jones  &  Spen. 


(N.  Y.)  517, 


170,  330 


Enders  v.  Brune,  4  Randolph  (Va.) 

438,  260 

Endicott  v.  Penny,  14  Sm.  &  Mar. 

(Miss.)  144,  76 

England,  Martin  v.  5  Yerg.  (Tenn.) 

313,  60 

England    v.    McKanrey,  4  Sneed 

(Tenn.)  75,  505 

English  V.   Brown,  7  Bush  (Ky.) 

138,  508 

Enicks  v.   Powell,   2  Strobh.  Eq. 

(So.  Car.)  196,  462,  502 

Ennis  v.  Crump,  6  Texas,  85,  503,  510 
Ennis,  Justices  v.  5  Ga.  569,  442 

Ennis  v.  Waller,  3  Blackf.  (Ind.) 

472,  76 

Enos  V.   Aylesworth,   8  Ohio  St. 

322,  437 

Ensworth,  Cuyler  v.  6  Paige  Ch.  R. 

22,  243 

Epperson,  Taul  v.  38  Texas.  492,  268 
Erie  Bank  v.  Gibson,  1  Watts  (Pa.") 

143,  '  207 

Erie  R.  R.  Co.  Amot  v.  67  New 

York,  315,  89 

Erie  R.  R.  Co.  Amot  v.  5  Hun  608,  3 
Erwin  v.  Downs,  15  New  York,  375,  16 
Erwin  v.  Greene,  5  Robinson  (La.) 

70,  105 


TABLE   OF   CASES. 


Iv 


Section 
Escoffie,  New  Orleans  Canal  and 

Banking  Co.  v.  2  La.  An.  830,  82,  391 
Esselman,    Gilliam    v.    5    Sneed, 

(Tenn.)  86,  261 

Estate  of  Dorwin,  Peake  v.  25  Vt. 

28,  311 

Estate  of  Leavenworth,   Bank  v. 

28  Vt.  209,  319 

Estudillo,  Mulford  v.  23  Cal.  94,  378 
Etcherson,  Sanders  v.  36  Ga.  404,  165 
Evans  v.  Bell,  45  Texas,  553,  84 

Evans  v.  Bicknell,  6  Vesey,  Jr.  174,  59 
Evans  v.  Bremridge,    8  De  Gex, 

Macu.  &  Gor.  100,  349 

Evans    v.    Bremridge,   2  Kay    & 

Johns.  174,  349 

Evans,  Briggs  v.  1  E.  D.  Smith  (N. 

y.)  192,  63 

Evans  v.  Commonwealth,  8  Watts 

(Pa.)  398,  530 

Evans,  Cooper  v.  Law  Rep.  4  Eq. 

Cas.  45,  210,  350 

Evans,  Corbet  v.  25  Pa.  St.  310,  110 
Evans,  Cutter  v.  115  Mass.  27,  408 
Evans  v.  Duncan,  1  Tyrw.  283,  38 

Evans  v.  Earle,  1  Hurl.  &  Gor.  1,  146 
Evans  v.  Evans,  16  Ala.  465,  232 

Evans,    Farmers'  and  Mechanics' 

Bank  V.  4  Barb.  (N.  Y.)  487,        103 
Evans  v.  Keeland,  9  Ala.  42,  201 

Evans,  Kennedy  v.  31  111.  258,  17,  309 
Evans,  Leadley  v.  9  Moore,  102,  140 
Evans,  M.  &  M.  Bank  Wheeling  t\ 

9  West  Va.  873,  296,  333 

Evans,  Norris  v.  2  B.  Mon.  (Ky.) 

84,  271 

Evans.  People  v.  29  Cal.  429,  461 

Evans  v.  Raper,  74  Nor.  Car.  639,  121 
Evans,  Reed  v.  17  Ohio,  128,  68,  170 
Evans,  Smith  v.  Wils.  313,  75 

Evans,  State  Bank  v.  3  J.  S.  Green 

(N.  J.)  155,  357 

Evans,  Wilkinson  t\  Law  Rep.  1 

C.  P.  407,  66 

Evans  v.  Whyle,  5  Bing.  485,  102 

Evans  v.  Whyle,  3  Moore  &  Payne, 

130,  102 

Evans,  Vaughan  v.  1  Hdl  Eq.  (So. 
Car.)  414,  467 


Section 
Eve,  Burgess  v.  Law  Rep.  13  Eq. 

450,  134 

Evers  v.  Sager,  28  Mich.  47,  397 

Everett,   Eyre  v.  2  Russell,  381,     200 
Everett,     Polak    v.   Law    Rep.    1 

Queen's  B.  Div.  669,  373 

Everett,  Townsend  v.  4  Ala.  607, 

466,  522 
Everly  v.  Rice,  20  Pa.  St.  297,  372 

Evoy  V.  Tewksbury,  5  Cal.  285,  68 

Ewbank,  Rowlett  v.  1  Bush  (Ky.) 

477,  8 

Ewing's  Admxs.  Dixon  v.  3  Ohio, 

280,  378 

Ewing,  Williams  v.  31  Ark.  229,      248 
Ewins  V.  Calhoun,  7  Vt.  79,  59 

Exall  V.  Partridge,  8  Dum.  &  East, 

308,  178 

Executors  of  Baker  i;.  Marshall,  16 

Vt.  522,  381 

Executor  of   Heriot,   Taylor  v.  4 

Des.  Eq.  (So.  Car.)  227,  195 

Executor  of   Richard  Dorman  v.  1 

Florida,  281,  68 

Exr.  of  Dennis  v.   Rider,    2  Mc- 

Lea*n,  451,  203 

Exrs.    of    McCall    v.     Admr.    of 

Evans,  2  Brevard  (So.  Car.)  3,     209 
Exr.  of  Robinson,  Commissioner  v. 

1  Bailey  Law  (So.  Car.)  151,         359 
Exrs.  of  Riggins  v.  Brown,  12  Ga. 

271,  299 

Exrs.  of  Riggin?.  Brown  v.  3  Kelly 

(Ga.)405,  378,382 

Exrs.  of  White  v.  White,  30  Vt.  338, 180 
Exeter  Bank  r.   Rogers.   7    New 

Hamp.  21,  ^U 

Eyer,  Northumberland  Bank  v.  58 

Pa.  St.  97,  33 

Eyles,  Colman  v.  2  Starkie,  62,  62 

Eyre  v.  Demsford,  1  East,  318,  58 

EjTe  V.  Everett,  2  Russell,  381,        200 
Eyre  v.   HoUier,   Lloyd  &  Goold 

(Temp.  Plunket),  250,  25,  338 

Eyre,  Silk  v.  Irish  Rep.  9  Eq.  393,   280 


F.   &  M.   Bank  of   Lexington  v. 
Cosby,  4  J.  J.  Marsh.  (Ky.)  366,  328 


Ivi 


TABLE   OF    CASES. 


Section 
Faber,  Steele  v.  37  Mo.  71,  235 

Fackney,  Jacques  v.  64  111.  87,  275 
Fagan,  Latham  v.  6  Jones  Law, 

INor.  Car.)  G2,  459 

Fagan,  Sharp  v.  3  Sneed  (Tenn.) 

541,  306 

Fagon  V.   Jacocks.   4  Dev.   Law, 

(Nor.  Car.)  263,  233 

Failor,  Russell  v.  1  Ohio  St.  327,  232 
Fair  v.  Pengelly,  £4  Up.  Can.  Q. 

B. R.  611,  293 

Fairfax,  Commonwealtli  v.  4  Hen. 

&Munf.(Va.)20S,  139 

Fairhaven  Bank,Wilcox  v.  7  Allen, 

270.  266 

Fairlie  v.  Denton,  8  Barn.  &  Cress. 

395,  52 

Fairlie  v.  Denton,  2  Man.  &  Ry.  353,  52 
Fairlie  v.  Lawson,  5  Cowen,  424,  93 
Falconer,   Smith  v.   11  Hun    (N. 

Y.)  481,  404 

Fambro,  Chipman  v.  16  Ark.  291,  527 
Farmer,  Shelton  v.   9  Bush  (Ky.) 

314,  241 

Farmer,  Bramwell  v.  1  Taunton, 

427,  439 

Farmer,  Hall  v.  5  Denio,  484,  74 

Farmer,  State  v.  21  Mo,  160,  484 

Farmer  v.  Stewart,  2  New.  Hamp. 

97,  214 

Farmers'  Bank  v.   Horsey,  1  Har- 
rington (Del.)  514,  325 
Farmers'  Bank  of  Canton  v.  Rey- 
nolds, 13  Ohio,  85,  390 
Farmers'  &  Drovers'  Bank  v.  Sher- 

ley,  12  Bush  (Ky.)  304,  265 

Farmers'  National  Bank,  TJhler  v. 

64  Pa.  St.  406,  9 

Farmers'  and  Mechanics'  Bank  v. 

Evans,  4  Barb.  (N.  Y.)  487.  103 

Farmers'   &   Mechanics'   Bank  v. 

Hathaway,  36  Vt.  5.39,  361 

Farmers'  &  Mechanics'  Bank,  Hic- 

kok  V.  35  Vt.  476,  208.  352 

Farmers'   &   Mechanics'   Bank  v. 

Humphrey,  36  Vt.  554,  95 

Farmers'   &  Mechanics'   Bank  v. 
Kercheval,  2  Mich.  504, 

134, 173,  313,  346 


SEcnoN 
Farmers'   &  Mechanics'   Bank  v. 

Kingsley,  2  Douglass  (Mich.)  379,  121 
Farmers'  &  Mechanics'  Bank,  Kra- 
mer V.  15  Ohio,  253,  188,  193 
Farmers'   &   Mechanics'   Bank  v. 

Polk,  1  Delaware,  Ch.  R.  167,       444 
Farmers'  &  Traders'  Bank  v.  Har- 
rison, 57  Mo.  503,  310 
Farmers'  &  Traders'  Bank  v.  Lu- 
cas, 26  Ohio  St.  385,              296,  354 
Farrar,  Towns  v.  2  Hawks  (Nor. 

Car.)  163,  85 

Farrar  v.  United  States,  5  Peters, 

373,  449 

Farrell,  Davidson  v.  8  Minn.  258,     514 
Farrell,  McKensie  v.  4  Bosw.  (N. 

Y.)  192,  68 

Faria,  Peckham  v.  3  Douglass,  13,     61 
Farebrother    v.    Wodenhouse,   23 

Beavan,  18,  279 

Farebrother  v.  Simmons,  5  Barn. 

&  Aid.  333,  76 

Farrington  v.  Gallaway,  10  Ohio, 

543.  17 

Farris,  Linn  County  v.  52  Mo.  75,    358 
Farris    v.    Martin,     10     Humph. 

(Tenn.)  495,  75 

Farnsworth  v.  Clark,  44  Barb.  601,      9 
Farrow  v.  Respess,  11   Ired.  Law 

(Nor.  Car.)  170,  84 

Farwell,  Hopkins  v.  32  New  Hamp. 

425,  289 

Farwell  v.  Lowther,  18  111.  252,         67 
Farwell  v.  Meyer,  35  HI.  40,  323 

Fawcett,  Harriss  v.  Law  Rep.  8 

Chan.  Appl.  Cas.  866,  114 

Fawcett,  Harriss  v.  Law  Rep.  15 

Eq.  Cas.  311,  114 

Fawcett  V.  Kimmey,  33  Ala.  261,      275 
Faxon,  Marion  v.  20  Conn.  486,  60 

Fay,  Druiy  v.  14  Pick.  26,  213 

Fay,  Drury  v.  14  Pick.  326,  5.36 

Fear  v.  Dunlap,    1   Greene  (Iowa) 

331,  147,  173 

Feamster  v.  Withrow,  9  West  Va. 

296,  182 

Featherston,    Scott  v.   5  La.   An. 

306,  261 

Felch  V.  Lee,  15  Wis.  265,  292 


TAB^E   OF   CASES. 


Ivii 


Section 
Fellows,  Currier  v.  27  New  Hamp. 

366,  283,  238 

Fellows  V.  Prentiss,  3  Denio,  512, 

135,  161 
Fellows  V.  Prentiss,  9  Denio,  512,  316 
Fennell  v.  McGuire,  21  Up,  Can. 

C.  P.  R.  134,  113,  131 

Fensler  v.  Prather,  4;3  Ind.  119,  504 
Fentum  v.  Pocock,  1  Marshall,  14,  156 
Fentum  v.  Pocock,  5  Taunt.  192,  156 
Fenwick,  Winston  v.  4  Stew.   & 

Port.  (Ala.)  269,  80 

Ferg-usson,  Ghiselin  v.  4  Harris  & 

Johns.  (Mel.)  522,  276 

Ferg-usson,  Haslock  v.  7  Ad.  &  Ell. 

86,  59 

Ferguson  v.  Childress,  9  Humph. 

(Tenn.)  382,  325 

Ferguson,  Harris  v.  2  Bailey  Law 

(So.  Car.)  397,  222 

Ferguson  v.  Hirsch,  54  Ind.  337,  487 
Ferguson,    Laughlin  v.    6     Dana 

(Ky.)  Ill,  405 

Ferguson,  Leake  v.  2  Gratt.   (Va.) 

419,  268 

Ferguson  v.  State  Bank,  8  Ark.  (3 

Eng.)  416.  296 

Ferguson  v.  Turner,  7  Mo.  497,  382 
Fernald  v.  Dawley,  26  Me.  470,  226 
Fernald,  Sawyer  v.  59  Me.  500,  9 

Ferrell  v.  Hunter,  21  Mo.  436,  354 

Ferrell  v.  Maxwell,  28  Ohio  St.  383,  46 
Ferrie,  Greene's  Exrs.  v.  1  Dessau- 
sure  (So.  Car.)  164,  2^0 
Ferry  v.  Burchard,  21  Ct.  597,  121 
Fessenden  v.  Mussey,  11  Cush.  127,  75 
Fetrow  v.  Wiseman,  40  Ind.  148, 

3,  392 
Fett,  McDonald  v.  49  Cal.  354, 

410,  423 
Fitz,  Jones  v.  5  New  Hamp.  444,  231 
Few,  Kelly  v.  18  Ohio,  441,  153 

Fewlass  v.  Abbott,  28  Mich.  270,  108 
Field  V.   Cutler,   4  Lans.  (N.  Y.) 

195,  -206 

Field,   Harrison  v.  2  Washington 

(Va.)  136,  80,  117 

Field,  Hutson  v.  6  Wis.  407,  73 

Field  j;.  Rawlings,  1  Gilm.  (m.)581,  111 


Section 
Field,  Thomer  v.  1  Bulstr.  irO,  9 

Fielden  v.   Lahens,  6  Blatchford, 

524,  470 

Fielding  v.  Waterhouse,  8  Jones  & 

Spencer  (N.  Y.)  424,      235,  260,  370 
Filene,  Rice  v.  6  AUen,  230,  103 

Files  V.  McLeod,  14  Ala.  611,  54 

Findlay's  Exrs.  v.  United  States,  2 

McLean,  44,  *  27 

Findley,    Campbell  v.   3  Humph. 

330,  68 

Findley,  Robertson  v.  31  Mo.  384,  7 
Findley,  State  v.  10  Ohio,  51,  443,  445 
Findley  v.  State  Bank,  6  Ala.  244,  354 
Finley  v.  King,  1  Head  (Tenn.) 

123,  378 

Finley,  Miller  v.  26  Mich.  249,  332 
Finch,  Newsam  v.  25  Barb.  (N.Y.) 

175,  306 

Finch,  Smith  v.  2  Scam.  (111.)  321, 

9,  53,  153 
Fink  V.  Mahaffy,  8  Watts  (Pa.) 

384,  267 

Finks,  Wolf  tJ.  1  Pa.  St.  435,  299 

Finden,  Kemp  v.  12  Mees.  &  Wels. 

421,  247,  253 

Finkbeiner,  Eilbert  v.  68  Pa.  St. 

243,  149 

Finney's  Admrs.  v.  Commonwealth, 

1  Pen.  &  Watts  (Pa.)  240,  370 

Finney,  Ford  v.  35  Ga.  258,  52 

Finney,  Pickens  v.   12  Smedes  & 

Mar.  (Miss.)  468,  388 

Finn  v.  Stratton,  5  J.  J,   Marsh. 

(Ky.)  364,     •  382 

Finsley  v.  Oliver's  Admr.  5  Munf. 

(Va.)  419,  273 

Firemen's  Ins.  Co.  v.  Cross,  4  Rob. 

(La.)  508,  4 

Firemen's  Ins.  Co.  v.  McMillan,  29 

Ala.  147,  340,  524 

Fii-emen's  Ins.  Co.  Perrine  v.   22 

Ala.  575,  374 

Firman  v.  Blood,  2  Kansas,  496,       147 
First  Associated  Reformed  Presby- 
terian Church,  Shaw  v.  39  Pa. 

St.  226,  316 

First    Congregational    Society    v. 

Snow,  1  Cush.  510,  282 


Iviii 


TABLE   OF   CASES. 


Section 
First  National  Bank  of  Fort  Dodge 

V.  Breese,  39  Iowa,  640,  92 

First  National  Bank  of  Dubuque  v. 

Carpenter,  41  Iowa,  518,  174 

First  National  Bank  of  Chicago, 

Nelson  V.  48  lU.  86,  63 

First  National  Bank,  Myers  v.  78 

Ul.  257,  309 

First  National  Bank  v.  Smith,  25 

Iowa,  210,  513 

First  National  Bank,  Monmouth  p. 

Whitman,  66  111.  331,  300,  352 

First  National  Bank  of  Marshall, 

Inkster  v.  30  Mich.  143,  208 

First  National  Bank  of  IVlarshaU- 

town,  Middleton  v.  40  Iowa,  29,   421 
Fisher,  Cooper  v.  7  J.  J.  Marsh. 

(Ky.)  396,  318 

Fisher  v.  Cutter,  20  Mo.  206,  102 

Fisher,  Keane  v.  10  La.  An.  261.  91 
Fishbnrn  v.  Jones,  37  Ind.  119,  348 
Fish,  Reed  v.  59  Me.  358,  137 

Fish  V.  Thomas,  5  Gray,  45,  50 

Fisk,  Wood  V.  63  New  York.  245,  117 
Fiske,  Bachelder  v.  17  Mass.  464, 

238,  248 
Fiske  V.  McGregory,  34  New  Hamp. 

414,  58 

Fitch,  Crim  v.  53  Ind.  214,  58 

Fitch  V.  Gardenier,  2  Albott's  Rep. 

Omitted  Cas.  153,  60 

Fitch,  Sewall  v.  8  Cowen,  215,  76 

Fitzgerald  v.  Dressier,  7  Com.  B. 

(J.  Scott)  N.  S.  374,  51,  54 

Fithian  v.  Corwin,  17  Ohio  St.  118,  297 
Fitzhugh,  Andre  v.  18  Mich.  93,  407 
Flanagan,  Adams  v.  36  Vt.  400, 

226,  230 
Flanagan  v.  Post,  45  Vt.  246,  364 

Flagler,  Sanborn  v.  9  AUen,  494,  75 
Fleece  v.  State,  25  Ind.  384;  439 

Flewellan,  Drake  v.  33  Ala.  106,  44 
Fletcher,  Benton  v.  31    Vt.  418, 

84,  154 
Fletcher  v.  Edson  8  Vt.  294,  190 

Fletchsr  v.   Gamble,   3  Ala.  335, 

321,  325 
Fletcher  v.  Grover,  11  New  Hamp. 

368,  251 


Section 
Fletcher  v.  Jackson,  23  Vt.  581, 

245,  246,  247,  255 
Fletcher  v.  Leight,   4  Bush.  (Ky.) 

303,  357 

Fletcher,   Skillett  t'.   Law  Rep.  1 

Com.  PI.  217,  346 

Fletcher  Skillett  v.   Law  Rep.  2 

Com.  PI.  469,  346 

Fleming,  Adcock  v.  2  Dev.  &  Batt. 

Law  (Nor.  Car.)  225,  53,  168 

Fleming  c.  Beaver,  2  Rawle  (Pa.) 

128,  270 

Fleming,  Inhabitants   of  Wendell 

V.  8  Gray,  613,  445 

Fleming,  Jones  v.  15  La.  An.  522,  17 
Fleming,  State  v.  46  Ind.  206,  492 

Flinn,  Wright  v.  33  Iowa,  159,  94 

Flint  V.  Day.  9  Vt.  345,  151 

Flint,  Johnson  v.  34  Ala.  673,  400 

Flint,  Municipality  of  Whitby  v.  9 

Up.  Can.  C.  P.  R.  449,  445,  447,  472 
Flint.  Trustee  of  Free  Schools  z;.  13 

Met.  (Mass.)  539,  54 

Flippen,  Reid  v.  47  Ga.  273,  199,  296 
Florance  v.  Richardson,  2  La.  An. 

6G3,  460 

Flores  v.  Howth,  5  Texas,  329,  141 

Florida  R.  R.  Co.,  Voss  v.  50  New 

York,  369,  361 

Floyd  V.  Harrison,  4  Bibb  (Ky.)  76,  55 
Floyd,  Hollingsworth  v.  2  Har.  & 

Gill  (Md.)  87,  266 

Fluck  V.  Hager,  51  Pa'.  St.  459,  288 
Fluker  v.  Henry's  Admr.   27  Ala. 

403,  26 

Flynn  v.  Mudd,  27  111.  323,  17,  305 
Flynn's    Exr.  Brandenburg  v.  12 

B.  Mon.  (Ky.)  397,  227 

Fogleman,     Shoffner    v.  Winston 

Law  &  Eq.  (Nor.  Car.)  12,  276 

Foljambe.  Ogilvie  v.  3  Merivale,  53,  75 
Foley,  Haven  v.  18  Mo.  136,  282 

Folkes,  Dubuisson  v.  30  Miss.  432, 

304,  305 
Follmer  r.  Dale,  9  Pa.  St.  83,  297 

Folsom,  Moore  v.  14  Minn.  340,  149 
Fooks,  Strange  v.  4  Giffard,  408,  386 
Fontaine,  Lee  v.  10  Ala.  755,  49 

Foot,  Wilson  v.  11  Met.  285,        17,  20 


TABLE    OF   CASES. 


Hx 


Section 
Foote  V.  Brown,  2  McLean,  396,  168 
Forbes,  Brownelow    v.  2    Johns. 

101,  426 

Forbes,  Coleman  v.  22  Pa.  St.  156,  120 
Force  v.  Craig,  2  Halstead  (N.  J.) 

272,  296 

Ford  V.  Beard,  31  My.  459,  296 

Ford  V.   Clough,  8  Greenl.  (Me.) 

334,  445 

Ford  V.  Finney,  35  Ga.  258,  52 

Ford,  Guion  v.  12  Robinson,  (La.) 

123,  438 

Ford  Hays  v.  55  Ind.  52,  240 

Ford  V.  Keith,  1  Mass.  139,  178,  185 
Ford  V.  Stobridge,  Nelson,  24,  176 

Fordyce,  Bank  v.  9  Pa.  St.  275,  34,  378 
Fordyce  v.  Ellis,  29  Cal.  96,  325 

Foreman,    Deardorff   v.    24    Ind. 

481,  354 

Forest  v.  Shores,  11   La.   (CuiTy,) 

416,  176 

Forest  v.  Stewart,  14  Ohio  St.  246, 

85,  170 
Forney,    Kendrick    v.    22    Gratt. 

(Va.)  748,  182,  273 

Forney,  Swope  v.  17  Ind.  385,    30,  350 
Forrester,  Stirling  v.  3  Bligh,  575,    383 
Forstall,  Union  Bank  v.  6  La.  (Cur- 
ry) 211,  '  :  68 
Fort,   House  v.    4    Blackf.   (Ind.) 

293,  282 

Forward  v.  Marsh,  18  Ala.  645,  483 
Fowler  v.   Alexander,    1  Heiskell 

(Tenn.)  425,  18 

Fowler  v.  Bi'ooks,  13  New  Hamp. 

240,  300,  307 

Fowler  v.  Clearwater,  35  Barb.  (N, 

Y.)  143,  53 

Fowler,  Hall  v.  6  Hill,  630,  409 

Fowler,  Newell  v.  23  Barb.  (N.  T.) 

628,  82 

Fowler.  Teague  v.  56  Ind.  569,  49 

Foss,  Cleaves  v.  4  Greenl.  (Me.)  1,  76 
Foss  V.  City  of  Chicago,  34  111.  488,  370 
Foster  v.  Barney,  3  Vt.  60,  83,  385 

Foster,  Cage  v.  5  Yevg.  (Tenn.) 

261,  257 

Foster  r.  Charles,  6  Bing.  396,  59 

Foster,  Crawford  v.  6  Ga.  202,   349,  536 


Section 
Foster,  Dunlap  v.  7  Ala.  734,  406 

Foster,  Eastman  v.  8  Met.  (Mass.) 

19,  282 

Foster  v.  Hale,  3  Vesey  Jr.  696,  66 
Foster  v.  Johnson,  5  Vt.  60,  253 

Foster,  Strong  v.  17  Com.  Bench 

(8  J.  Scott)  201,  292,  296 

Foster  v.  ToUeson,  13  Rich.  Law  & 

Eq.  (So.  Car.)  31,  172 

Foster  v.  Trustees  of  Athenaeum,  3 

Ala.  302,  273 

Foster,  Vail  v.  4  New  York,  312,  282 
Fountain,   Browning  v.   1  DuvaU 

(Ky.)  13,  94 

Fowle  V.  Freeman,  9  Vesey,  351,  75 
Foxall,   Phillips  v.   Law    Rep.    7 

Queen's  B.  666,  368 

Foxcroft  V.  Nevens,  4  Greenl.  (Me.) 

72,  447 

Foy,  Conrad  v.  68  Pa.  St.  381,  207 

Fox,  Hess  V.  10  Wend.  436.  38 

Fox,  Knight  v.  Morris  (Iowa)  305,  113 
Fox  V.  Meacham,  6  Nebraska,  530,  480 
Fox  V.  Pai-ker,   44  Barb.  (N.  Y.) 

541,  318 
Francis,    Godwin  v.  Law  Rep.   5 

Com.  P.  295,  75 

Francis,  Shane  v.  30  Ind.  92,  487 

Francisco,  Buford  v.  3  Dana  (Ky.) 

68,  195 

Frank  v.  Edwards,  8  Wels.  Hurl. 

&  Gor.  214,  341 

Franklin  Mills,  Brewer  v.  42  New 

Hamp.  292,  264 

Franklin  Bank  v.  Cooper,  39  Me. 

542,  367 
Franklin  Bank  v.  Cooper,  36  Me. 

179,  12,  14,  365 

Franklin,  v.  Hammond,  45  Pa.  St. 

507.  446 

Franklin  Bank  v.  Stevens,  39  Me. 

532,  358,  365 

Franklin,  Tallman  v.  14  New  York, 

584,  66 

Franklin's  Admr.  v.  Depriest,   13 

Gratt.  (Va.)  257,  30 

Eraser,  Eales  v.  6  Man.  &  Gr.  755,  27 
Fraser  v.  McConnell,  23  G a.  368, 

17.  25 


Ix 


TABLE   OF    CASES. 


Section 
Fralick,  Willard  v.  31  Midi.  431,  515 
Frantz,  Wartel  v.  76  Pa.  St.  88,  357 
Frazee,  Dixou  v.  E.  D.  Smith  (N. 

Y.)  32,  62,  64 

Freauer  v.  Tingling,  37  Md.  491,  386 
Frederick  v.   Moore,    13  B.  Hon. 

(Ky.)  470.  383 

Frederick,  Rhoads  r.  8  Watts  (Pa.) 

448,  336 

Fredericks,  State  v.  8  Iowa,  553,  13 
Freeland  v.  Couipton,  30  Miss.  424,  298 
Freer,    Bellingham  v.  1    Moore's 

Priv.  Con.  Cas.  333,  316 

Freehold  National  Banking  Co., 

Brick  ads.  8  Vroora  (N.  J.)  307, 

384,  385 
Freeholders  of  Warren  v.  Wilson, 

1  Harrison  (N.  J.)  110,  466 

Freeport  v.  Bartol,  8  Greenl.  (Me.) 

340,  66 

Freeman,  Bailey  v.  4  Johns.  280,  6 
Freeman,  Bailey  v.  11  Johns.  221,  73 
Freeman,  Fowle  v.  9  Vesey,  351,  75 
Freeman  v.  Freeman,  2  Bulst.  269,  7 
Freeman  v.  Mebaue,  2  Jones  Eq. 

(Nor.  Car.)  44,  280 

Freeman,  Pasley  v.  3  Term  R.  51,  59 
Freeman,  Stedman  t\  15  Ind.  86,  261 
Freeman's  Bank  v.  Rollins,  13  Me. 

202,  305 

Freeborn,  Belloni  v.  63  New  York, 

383,  78,  190 

French  v.  French,  2  Man.  &  Gr. 

644,  6-9 

French  v.  Marsh,  29  Wis.  649,  82 

French,   Pigon  v.  1   Washington 

(U.  S.)  278,  176 

French,  Sweetser  v.  2  Cush.  309, 

10,  354 
French  v.  Thompson,  6  Vt.  54,  51 

French,   Tuckerman  v.  7  Greenl. 

(Me.)  115,  157 

Freudenstein  v.  McNeir,  81  111.  208,  487 
Fretz,  Myers  v.  4  Pa.  St.  344,  494 

Frey  v.   Hebenstreit,   1  Robinson 

(La.)  561.  429 

.  Freyer,  LefBngwell  v.  21  Wis  392, 

21,  117 
Frickee  v.  Downer,  35  Mich.  151,     319 


Section 
Fridge  v.  State,  3  Gill  &  Johns. 

(Md.)  103,  29 

Frink,  Peck  r.  10  Iowa,  193,  83 

Frinden,  Kemp  v.  12  Mees.  &  Wels. 

421,  252 

Frisch  v.  Miller,  5  Pa.  St.  310,  348 

Frith,  State  i'.  14  La.  (Curry)  191, 

431.  435 
Frost,  Edge  v.  4  Dow.  &  Ry.  243,  63 
Frost  V.  Rucker,  4  Humph.  (Tenn.) 

57,  515 

Frow,  Jacobs   &  Co.'s  Estate,  73 

Pa.  St.  459,  262 

Fiye  V.  Barker,  4  Pick.  382,  120,  208 
Fiyer,  McClurg  v.  15  Pa.  St.  293,  84 
Fugate,  Nash  v.  24Gratt.  (Va.)  202, 355 
Fugate,  Admx.  Pitts  v.  41  Mo.  405,  527 
Fuquay,  Johnson  v.  1  Dana  (Ky.) 

514,  501 

Fulton  V.  Matthews,  15  Johns.  433,  296 
Fulmer  v.  Seitz,  68  Pa.  St.  237,  331 
Fullam  t:  Adams.  37  Vt.  391,  50,  55 
FuUamv.  Valentine,  11  Pick.  156,  425 
Fuller,  Athol  Machine  Co.  v.  107 

Mass.  437,  4 

Fuller  V.   Calkins.   22  Iowa,   301, 

452,  478 
Fuller  V.  Davis,  1  Gray,  612,  431 

Fuller,  Goodspeed  v.  46  Me.  141,  46 
Fuller,  Gould  v.  18  Me.  364,  237 

Fuller,  Kaighn  v.  1  McCarter  (N. 

J.)  419,  328 

Fuller  V.  Loring,  42  Me.  481,  288 

Fuller  V.  Milford,  2  McLean,  74,  296 
Fuller   V.    Scott,    8    Kansas,    25, 

8,  10,  74,  147,  173 
Fuller,  Stark  v.  42  Pa.  St.  320,  216 
Fullerton,  Galbraith  v.  53  111.  126,  309 
FuUerton  v.   Sturges,   4  Ohio  St. 

529,  358 

Fults,  Ellen  wood  v.  63  Barb.  321,  9 
Furber  v.  Bassett,  2  Duvall  (Ky.) 

433,  299 

Furbor,  Warrington  v.  8  East,  242, 

178,  180 
Furgerson,  McLewis  v.  5  The  Re- 
porter, 330,  233 
Furnold  v.  The  Bank  of  the  State 

of  Mo.  44  Mo.  336,  281 


TABLE   OF   CASES. 


Ixi 


Section 
Gabbert's    Admr.  Commonwealth 

V.  5  Bush  (Ky.)  438,  469 

Gadsden,  Elfe  v.  2  Rich.  (So.  Car.) 

373,  66 

Gadsen  v.  Quackenbush,   9  Rich. 

Law  (So.  Car.)  222,  90 

Gaddie,   Whitman  v.   7  B.   Moh. 

(Ky.)  591,  224 

Gaff  V.  Sims,  45  Ind.  262,  1,  168 

Gage  V.  Lewis,  68  111.  604,  171,  351 
Gage  V.  Mechanics'  National  Bank 

of  Chicago,  79  111.  62,  170,  208 

Gage  V.  Sharp,  24  Iowa,  15,  354 

Gahn,  Niemcewicz  v.  3  Paige,  614, 

22,  204 
Gahn  v.  Niemcewicz,     11   Wend. 

312,  22 

Gaines,  Cullutu  v.  1  Ala.  23,  82 

Galloway,  Bonham  v.  13  111.  68,  230 
Gallant,  Polk  v.  2    Dev.  &  Batt. 

Eq.  (Nor.  Car.)  395,  204 

Gallagher  v.  Btunel,  6  Cowen,  347, 

59,  60 
Gallagher,  Wylie  v.  46  Pa.  St.  205,  446 
Gallagher  r.  White,  31  Barb.  (N. 

Y.)  92,  85,  112 

Gallaway,  Farrington   v,  10  Ohio, 

543,    '  17 

Galbraith,  Shupe  v.  82  Pa.  St.  10,  8 
Galbraith  v.  FuUerton,  53  111.  126,  309 
Gale,  Pence  v.  20  Minn.  257,  370 

Gale  V.  Nixon,  6  Cow.  (N.  Y.)  445,  66 
Gallentine,   Burnham    v.   11    Ind. 

295,  86 

Gamage  v.  Hutchins,  23  Me.  565, 

119,  168 
Gamewell,   Hommell  v.  5  Blackf. 

(Ind.)  5,  181 

Gamble,  Fletcher  v.  3  Ala.  335, 

321,  325 
Gamble,  Hooker  v.  12  Up.  Can.  C. 

P.  R.  512,  317 

Gammell  v.  Parramore,  58  Ga.  54,  170 
Gammon,  Bird  v.  5  Scott,  213,  50 

Gammon,  Bird  v.  3  Bing.  N.  C. 

883,  48 

Gammon  v.  Stone,  1  Vesey,  Sr.  339,  263 
Gannett    v.    Blodgett,    39    New 

Hamp.  150,  266 


Section 
Gans,  Caldwell  v.  1  Montana,  570,  419 
Gaoler  of  Philadelphia,  Republica 

0.  2  Yates  (Pa.)  263,  427 

Garretson,    Cummins  v.    15  Ark. 

132,  505 

Garber  v.  Commonwealth,  7  Pa.  St. 

265,  .5.32 

Garton    v.   Union  City  Bank,   34 

Mich.  279,  304 

Garton,  State  v.  32  Ind.  1,  355 

Garr  v.  Martin,  20  New  York,  306,  217 
Garrison,  Gladwin  v.  13  Cal.  330,  188 
Garvin  v.  Mobley,    1  Bush  (Ky.) 

48,  349 

Garrow,  Phelps  v.  8  Paige  Ch.  322,  62 
Garland,  Prentiss  v.  64  Me.  155,  86 
Garey  v.  Hignutt,  32  Md.  552,  82 

Gard  v.  Stevens,  12  Mich.  292,  137 

Garnett  v.  Roper,  10  Ala.  842,  126 

Garlinghouse,  Wright  v.  26  New 

York,  539,  156 

Gary  v.  Cannon,  3  Ired.  Eq.  (Nor. 

Car.)  64,  204 

Gary,  Wadlington  v.  7  Smedes  & 

Mar.  (Miss.)  522,  296,  308 

Garth,  Robinson  v.  6  Ala.  204,  76 

Gardenier,  Fitch  v.  2  Abbott's  Rep. 

Omitted  Cas.  153,  60 

Gardiner  v.  Hopkins,  5  Wend.  23,  51 
Gardiner  v.  Harback,  21  111.  129,  334 
Gardiner,  Praed  v.  2  Cox,  86,  279 

Gardner  v.  King,  2  Ired.  Law  (Nor. 

Car.)  297,  9,112 

Gardner,  Yalloton  v.  R.  M.  Charl- 
ton (Ga.)  86,  161 
Gardner  v.  Van  Nostrand,  13  Wis. 

543,  321 

Gardner  v.  Walsh,  5  Ellis  &  Black. 

83,  332 

Gardner  r.  Watson,  13  111.  347,        298 
Garrett,  Bradner  v.  19  La.  (Curry) 
'  455,  17 

Garratt  v.  Eliff,  4  Humph.  (Tenn.) 

323,  515 

Garrett  v.    Handley,    4  Barn.   & 

Ores.  664,  96,  97 

Garrett,    Overacre    v.    5  Lansing 

(N.  Y.)  156,  460 

Gardom,  ex  parte,  15  Vesey,  286,     10 


Ixii 


TABLE   OF   CASES. 


Section 
Gaston  r.  Barney,  11  Ohio  St.  506,  286 
Gaston,  Miller  v.  2  Hill  (N.Y.)  188,  150 
Gasquet  r.  Thorn,  14  La.  (Curiy,) 

506,  172 

Gasquet  r.  Oakey,  19  La.  (Curry,) 

76,  197 

Gass  t'.  Stinson,  2  Sumner,  453,        342 
Gaskins,  Miller  v.  1  Smedes  &  Mar. 

Ch.  R.  (Miss.)  524,  125 

Gates  V.  Bell,  3  La.  An.  62.  10 

Gates,  Campbell  v.  17  Ind.  126,        352 
Gates  r.   McKee,   13  New  York, 

232,  133 

Gates  V.  Renfro,  7  La.  An.  569,        197 
Gauklen,  Crawford  v.  33  Ga.  173, 

27,  306 
Gault,  Boyd  v.  3  Bush  (Ky.)  644,  492 
Gausen    v.    Tomlinson,    8    E.    C. 

Green  (N.  J.)  405,  105 

Gaussen  Ext.   United  States  r.  2 

Woods,  92,  469 

Gayle,  Pearson  v.  11  Ala.  278,  392 

Gaylord,  Decker  v.  8  Hun  (N.  Y.) 

110,  90 

Gaylord,  Second  National  Bank  v. 

34  Iowa,  246,  173 

Gay  V.  Mott,  43  Ga.  252,  7 

Gay,  Talbot  v.  18  Pick.  534,  168 

Geary  v.  Physic,  5  Bam.  &  Cres. 

234,  66 

Geary  v.  Gore  Bank,  5  Grant's  Ch. 

R.  536,  217 

Geddis  v.  Hawk,  1  Watts  (Pa.)  280,  82 
Geddis,  Hawk  v.  16  Serg.  &  Rawle, 

23,  82 

Geddis  V.  Hawk,  10  Serg-.  &  Rawle, 

(Pa.)  33,  207 

Gedye  v.  Matson,  25  Beavan,  310,    266 
Gee,  Robinson  v.  1  Vesey,  Sr.  251, 

21,  105 
Gegg,  Luckings'  Admr.  v.  12  Bush 

(Ky.)  298,  185 

Geiger's  Admr.  Hansberger's  Exr. 

r.  3Gratt(Va.)  144,  323 

Geiger  v.  Clark,  13  Cal.  579,  157 

Cell,  Tomlinson  v.  6  Ad.  &  Ell. 

564,  9,  50 

Genge,  Whitmarsh  v.  3  Man.  & 
Ryl.  42,  523 


Section 
General  Steam  Navigation  Co.  v. 

Rolt,  6  J.  Scott  (N.  S.)  550,  345 

Generous,  Kleinhaus  v.  25  Ohio  St. 

667,  302 

George,  McKenna  v.  2  Richardson 

Eq.  (So.  Car.)  15,     239,  247,  248,  252 
George,  Whitnash  v.  8  Barn.   & 

Cress.  556,  523 

German  American  Bank,  Voss  v. 

83  m.  599,  377 

German  Natl.  Bank  of  Memphis, 

White  V.  9  Heisk.  (Tenn.)  475,      518 
German  Savings  Assn.  v.  Helm- 
rick.  57  Mo.  100,  306 
German,  Harrisburg  Bank  v.  3  Pa. 

St.  .300,  261,  281 

Gerber  v.  Ackley,  37  Wis.  43,  484 

Gerber  v.  Ackley,  32  Wis.  2:33,  484 
Gerrish,  Riley  v.  9  Cush.  104,  153 

Gewin,  Hodges  v.  6  Ala.  478,  321 

Gewm,  McGehee  v.  25  Ala.  176, 

•48.3,  487,  489 
Ghiselin  v.  Fergusson,  4  Harris  & 

Johns.  (Md.)  522,  276 

Gibb,   Pybus   v.  6   Ell.  &  Black. 

902,  469 

Gibbs,  Bickford  v.  8  Cush.  154,  7,  175 
Gibbs  V.  Blanchard,  15  Mich.  292,  62 
Gibbs  V.  Cannon,  9  Serg.  &  Rawle, 

(Pa.)  198,  173,  174 

Gibbs  V.  Mennard,  6  Paige  Ch.  R. 

258,  194 

Gibbons,  Brown  v.  37  Iowa,  654,  372 
Gibbons  v.  McCasland,  1  Barn.  & 

Aid.  690,  65 

Gibson,  Benton  v.  1  Hill,  Law  (So. 

Car.)  56,  84.172 

Gibson,  Cathcart  v.  1  Richardson 

Law  (So.  Car.)  10,  225 

Gibson,  Denison  v.  24  Mich.   187, 

21,  22,  104,  201 
Gibson,  Dyer  v.  16  Wis.  508,  53 

Gibson,  Erie  Bank  v.  1  Watts  (Pa.) 

143,  207 

Gibson,  Goss  v.  8  Humph.  (Tenn.) 

197,  240 

Gibson     r.     Martin,     7    Humph. 

(Tenn.)  415,  515 

Gibson  r.  Rix,  32  Vt.  824,  289 


TABLE   OF   CASES. 


Ixiii 


Section 
Gibson's  Exr.  Rhea  v.  10  Gratt. 

(Va.)  215,  335 

Giese,  Elliott  v.  7  Harr.  &  Johns. 

457,  68 

Gierman,  Cressy  v.  7  Minn.  398,  481 
Gilford  V.    Allen,   3  Met.   (Mass.) 

255,  .301 

Griffard,  ex  2Ktrte,  6  Vesey,  805,  383 
Gilleland,  Miller  v.  19  Pa.  St.  119,  331 
Gilliam    v.    Esselman,     5    Sneed 

(Tenn.)  86,  261 

Gilchrist,    Williams    v,    11    New 

Hamp.  535,  290 

Gilder  r.  Jeter,  11  Ala.  256,  309 

GUtinan,  Strong  v.  7  Philadelphia 

(Pa.)  176,  525 

Gillilan  v.  Ludington,  6  West.  Va. 

128,  605, 508 

Giles'  Ex'rs.    Lining  v.  3  Brevard 

(So.  Car.)  530,  494 

Gilette,  BuUard  v.  1  Montana,  509,  399 
Gilson,  Ball  v.  7  Upper  Can.  C.  P. 

R.  531,  17 

Gilson,  Commonwealth  v.  8  Watts 

(Pa.)  214,  499 

Gilbert,  Bordon  v.  13  Wis.  670,  116 
Gilbert,  Crocker  v.  9  Cush.  131,  89 

Gilbert,  Goodwin  v.  9  Mass.  510,  39 
Gilbert  v.  Heuck,  30  Pa.  St.  205, 

84,86 
Gilbert  v.  Isham,  16  Ct.  525,  452 

Gilbert,  Johnson  v.  4  Hill,  178,  53 

Gilmore's  Admr.  Hammond  v.  14 

Ct.  479,  166 

Gilmore,  Spies  v.  1  New  York,  321,  150 
Gilmore,  Warren  v.  11  Cush.  15,  431 
Gillighan  v.  Boardman,  29  Me.  79, 

7,' 173 
Gilligan  v.  Boardman,  28  Me.  81,       68 


Gill  V.  Bicknell,  2  Cush.  355, 


76 


Gill  V.  Herrick.  Ill,  Mass.  501,  62 

Gill,  New  Hampshire  Bank  v.  16 

New  Hamp.  578,  305 

Gill,  Tomlinson  v.  Amb.  330,  43 

Gilman  v.  Kibler,  5  Humph.  19,  68 
Gilman  v.  Lewis,  15  Me.  452,  89 

Gilman,  Taylor  v.  25  Vt.  411,  352 

Gillespie    v.     Dar^vin,     6    Heisk. 

(Tenn.)  21,  387 


Section 
Gillespie,  Dennis  v.  24  Miss.  581,  228 
Gillespie,  Kelly  v.  12  Iowa,  55,  17,  309 
Gillespie,  Miller  v.  59  Mo.  220,  240 
Gillespie  v.  Torrance,  25  NewYork, 

306,  203 

Gillett,   Malloryv.  21  NewYork, 

412,  45 

Gillett,  Mallory  v.  23  Barb.  (N.Y.) 

610,  50 

GUlett  V.  Whitmarsh,  8  Adol.  & 

EU.  (N.  S.)  966,  361 

Gillet  V.  Rachal,  9  Robinson  (La.) 

276,  312.  345 

Gingrich  v.  People,  34  111.  448,  430 
Girdler,  Dance  v.  4  Bos.   &  Pul. 

34,  344 

Girling,  Wells  v.  1  Brod.  &  Bing. 

477;  Id.  4  Moove,  78,  11 

Girling,  Wells  v.  8  Taunt.  737,  116 
Gist  V.  Drakely,  2  GiU  (Md.)  330, 

147,  151 
Givan,  State  v.  45  Ind.  267,  453 

Givens  v.  Briscoe,  3  J.  J.  Marsh. 

311  (Ky.)  529,  218 

Givens  v.  Nelson,  10  Leigh  (Va.) 

382,  234 

Glasgow,  Musgrave  v.  3  Ind.  31, 

48,  295 
Glass,  Cheek  v.  3  Ind.  286,  305 

Glass  V.  Thompson,  9  B.  Mon.  (Ky.) 

235,  380 

Glazier  v.  Douglass,  32  Ct.  393,  374 
Gladwin  v.  Gamson,  13  Cal.  330,  188 
Gleason  v.  Briggs,  28  Vt.  135,  48 

Gleason,  Morss  v.  64  New  York, 

204,  23 

Glen  Cove  Mut.  Ins.  Co.  v.  Harrold, 

20  Barb.  (N.  Y.)  298, .  74 

Glenn  v.  Statler,  42  Iowa,  107,  107 

Glenn  v.  Wallace,   4    Strob.  Eq. 

(So.  Car.)  149,  463 

Gleed,  Gregory  v.  33  Vt.  405,  6,  68 
Glidden  v.  Child,  122  Mass.  433,  62 
Glover,  Burke  v.  21  Up.  Can.  Q.  B. 

R.  294,  416 

Globe  Bank  v.  Small,  25  Me.  366,  168 
Globe  Mutual  Ins.  Co.  v.  Carson,  31 

Mo.  218,  319 

Glover  v.  Robbins,  49  Ala.  219,        331 


Ixiv 


TABLE    OF   CASES. 


Section 
Glover,  Wilson  v.  3  Pa.  St.  404-,  476 
Glyn  V.  Hertel,  8  Taunton,  208,  102 
Gobbold,  Choppin  v.  13  La.  An.  238,  48 
Godbe,  Baskin  v.  1  Utah,  28,  296 

Godfrey,  Chamberlain    v.    36  Vt. 

380,  524 

Godwin  V.  Francis,  Law    Rep.  5 

Com.  P.  295,  75 

Godwin,  Merriken  v.  2  Delaware 

Ch.  R.  236,  26 

Goddard  v.  Mockbee,  5  Crancli  (C. 

C.)  656,  49 

Goddard,  Salmon  Falls  Manf.  Co. 

V.  14  How.  (U.  S.)  447,  66,  75,  76 
Goddard  v.  Whyte,  2  GifFard,  449,  263 
Goff  V.  Bankston,  35  Miss.  518,  349 
Gold  V.  PhilUps,  10  Johns.  412,  53 

Goles'  Admx.  v.   Van  Arman,  18 

Ohio,  336,  115 

Goldsmith,  Connerat  v.  6  Ga.  14,  44 
Goldsberry,  Pierce  v.  31  Ind.  52,  307 
Goldsberry,  Pierce  v.  35  Ind.  317,  319 
Goldshede  v.  Swan,  1  Wels.  Hurl. 

&  Gor.  154,  63,  72 

Gomer  v.  Lazarus,  1  Dev.  Eq.  (Nor. 

Car.)  205,  280 

Goodin  v.  State,  10  Ohio,  6,  457 

Gookin  v.  Sanborn,  3  New  Hamp. 

491,  496 

Goodrum,   Shei-rell  v.   3  Humph. 

(Tenn.)  419,  406 

Goodhue  v.  Palmer,  13  Ind.  457,  310 
Goodenow,  Stowell  v.  31  Me.  538,  312 
Goodwyn  v.   Hightower,    30    Ga. 

249,  296 

Goodyear  v.  Watson,  14  Barb.  (N. 

Y.)  481,  271 

Goodall  V.  Wentworth,  20  Me.  322,  331 
Goodloe  V.  Clay,  6  B.  Mon,  (Ky.) 

236,  236,  288 

Goodloe,  Tudor  v.  1  B.  Mon.  (Ky.) 

322,  309 

Goodrich,  Penfield  v.  10  Hun  (N. 

Y.)  41,  24 

Goodspeed  v.  Fuller,  46  Me.  141,  46 
Goode  V.  Burford,  14  La.  An.  102,  497 
Goode  V.  Jones,  9  Mo.  866,  155 

Good  V.  Martin,  17  Am.  Law  Reg. 
Ill,  151,  152,  153 


Section 
Goodwin  v.  Gilbert,  9  Mass.  510,  39 
Goodwin,  Jones  v.  39  Cal.  493,  148 
Goodwin,  Keith  v.  31  Vt.  268,      46,  94 

223,  332 
Goodwin,   Railway  Co.  v.  3  Wels. 

Hurl.  &  Gor.  320,  343 

Goodwin  v.  Stark,  15  New  Hamp. 

218,  440 

Goodwin   v.    Buckman,    11    Iowa, 

308,  84 

Goodman  v.  Chase,  1  Barn.  &  Aid. 

297,  48,  68 

Goodman  v.  Griffin,  3  Stew.  (Ala.) 

160,  206 

Goodman,  Perkins  v.  21  Barb.  (N. 

Y.)  218,  15 

Goodman,  Tracy  v.  5  Allen,  409,  530 
Gore  Bank,  Geary  v.  5  Grant's  Ch. 

R.  536,  217 

Goring  v.   Edmonds,    3  Moore  & 

Payne,  259,  171 

Goring  v.  Edmonds,  6  Bing.  94,  171 
Gorton,   Smith  v.    10  La.   (Curry) 

374,  149 

Gorrie  v.  Woodley,  17  Irish  Com. 

Law  R.  221,  70,  75 

Gordon,  Baldwin  r.  12  Martin  (La.) 

0.  S.  378,  121,  206 

Gordon,  Buel  v.  6  Johns.  126,  189 

Gordon  v.  Calvert,  2  Simons,  253,  113 
Gordon  v.  Calvert,  4  Russell,  581,  113 
Gordon,  Calvert  r.  3  Man.  &  Ryl. 

124,  113 

Gordon,  Clark  v.  121  Mass.  330,  90 
Gordon,   Dunlop    v.    10    La.    An. 

243.  102 

Gordon,  Ex  parte,  15  Vesey,  286,  68 
Gordon,  Hughes  v.  7  Mo.  297,  506 

Gordon,   Kelly  v.  3  Head  (Tenn.) 

683,  414 

Gordon  v.  Martin,  Fitzgibbon,  302,  63 
Gordon  v.   McCarty,   3   Wharton, 

(Pa.)  407,  216 

Gordon,   McCarty  v.   4  Wharton, 

(Pa.)  321,  210 

Gordon  v.   Succession  of  Diggs,  9 

La.  An.  422,  405 

Gordon  v.  Sims,  2  McCord  Ch.(So. 

Car.)  151,  76 


TABLE   OF    CASES. 


Ixv 


Section 
Gosbell  V.  Archer,  2  Adol.   &  Ell. 

500,  75,  76 

Gosserand  v.  Lacour,  8  La.   An. 

75,     '  303 

Goswiler,  Poormaiij;.  2  Watts  (Pa.) 

69,  203 

Gossin  V.  Brown,  11  Pa.  St.  527,  275 
Goswiller's    Estate,    3    Penn.     & 

Watts,  200,  28 

'  Gosling,    Bateson  v.  Law.  Rep.  7 

Com.  PI.  9,  123 

Gosman  v.  Cruger,  7  Hun,  60,  4 

Goss  V.  Gibson,  8  Humph.  (Tenn.) 

197,  240 

Goss,   Kennedy  v.  38  New  York, 

330,  303 

Goss,   Passumpsic  Bank  v.  31  Vt. 

315,  354 

Goss  V.   Watlington,   3    Brod.   & 

Bing.  132,  523 

Goss  V.  Watlington,  6  Moore,  355,  523 
Gottsberger  v.  Radway,  2  Hilton, 

(N.  Y.)  342,  70 

Gott  V.  State,  44  Md.  319,  327 

Gourdin  v.  Read,  8  Richardson  Law 

(So.  Car.)  230,  357 

Gough,  Crane  v.  4  Md.  316,  38 

Gough,  Edelen  v.  5  Gill.  103,  68 

Gould,  Commonwealth  v.  118  Mass. 

300,  524 

Gould  V.  Ellery,  39  Barb.  (N.  Y.) 

163,  33 

Gould  V.  Fuller,  18  Me.  364,  237 

Gould  V.  Gould,  8  Cowen,  168,  179 

Gould,  Mills  V.  14  Ind.  278,  319 

Gould,   Middlefield  v.  10  Up.  Can.' 

C.  P.  R.  9,  523 

Govan  v.  Moore,  30  Ark.  667,  109 

Govan,  Union  Bank  v.   10  Smedes 

&  Mar.  (Miss.)  333,  21,  323,  378 

Governor  v.  Bowman,  44  111.  499,  324 
Governor,  Brooks  v.  17  Ala.  806,  456 
Governor  v.   Coble,    2  Dev.  Law 

(Nor.  Car.)  489,  460 

Governor  v.  Dodd,  81  111.  162,  453 

Governor  v.  Hancock,  2  Ala.  728,  483 
Governor,  Jemison  v.  47  Ala.  390,  383 
Governor  v.  Lagow,  43  111.  134, 

324,  336  i 
E 


Section 
Governor,  Lucas  v.  6  Ala.  826,  530 
Governor,    M 'Broom    v.    6    Port. 

(Ala.)  32,  392 

Governor,    M'Broom    v.    4    Port. 

(Ala.)  90,  525 

Governor,  McGrew  v.  19  Ala.  89,  480 
Governor,   McNeale   v.    3    Gratt. 

(Va.)  299,  519 

Governor,   Modisett  v.   2    Blackf. 

(Ind.)  135.  522 

Governor  v.  Perkins,  2  Bibb  (Ky.) 

395,  488 

Governor,  Rany  v.  4  Blackf.  (Ind.) 

2,  141 

Governor  v.  Ridgway,  12  111.  14,  469 
Governor  v.  Robbins,  7  Ala.  79,  462 
Governor  z'.  Shelby,  2  Blackf.  (Ind.) 

26,  530,  532 

Governor,  Shelby  i'.  2 Blackf.  (Ind.) 

289,  518 

Governor,    Smith  v.   2    Robinson 

(Va.)  229,  519 

Governors.  Stonum,  11  Ala.  679,  120 
Gowing  r.  Cowgill,  12  Iowa,  495,  480 
Gowdy,   Wakeman    v.    10    Bosw. 

(N.  Y.)208,  381 

Grayson,  Crozier  ?'.  4  J.  J.  Marsh. 

(Ky.)  514,  182 

Granger,  Williams  r.  4  Day  (Conn.) 

444,  170 

Grace,  Hoad  v.  7  Hurl.  &  Nor.  494, 

70,  134 
Grace,  Lipscomb  v.  26  Ark.  231,  189 
Graham,  Horsey  v.  Law  R.  5  Com. 

P.  9,  67 

Graham,  Murray  v.  29  Iowa,  520,  17 
Graham  v.  Musson,  7  Scott,  769,  76 
Graham,  Mailing  Union  v.   Law 

Rep.  5  Com.  PI.  201,  343 

Graham,  Miner  v.  24  Pa.  St.  491,  113 
Graham,  Ogle  v.  2  Penn.  &  Watts, 

(Pa.)  132,  333 

Grant,  Hare  v.  77  Nor.  Car.  203,  184 
Grant  v.  Hotchkiss,  26  Barb.  (N. 

Y.)  63,  70,  82 

Grant    v.   Ridsdale,    2    Harris    & 

Johns.  (Md.)  186,  132 

Grant,  Rupert  v.  6  Smedes  &  Mar. 

(Miss.)  433,  293 


Ixvi 


TABLE   OF   CASES. 


Section 
Grant  v.  Smith,  46  New  York,  93,  98 
Grant  v.  Sbaw,  16  Mass,  341,  53 

Grant,  WeUs  v.  4  Yerg.  (Tenn.) 

491,  457 

Grane,  Toplis  v.  5  Bing.   (N.   C.) 

636,  46 

Grafton    Bank   v.    Kent,  4   New 

Hamp.  221,  17 

Grafton    Bank    v.   Woodward,    5 

New  Hamp.  99,  309,  312 

Graves,  Dyer  v.  37  Vt.  369,  38 

Graves  v.  Lebanon  Natl.  Bank,  10 

Bush  (Ky  )  *23,  367 

Graves,  Ratcliffe  v.  1  Vernon,  196,  117 
Graves,   Remsen  v.  41  New  York, 

471,  31,  319 

Graves  v.  Tucker,   10  Smedes  & 

Mar.  (Miss.)  9,  353,  355 

Gray,  Barstow  v.  3  Greenl.  (Me.) 

409,  75 

Gray  v.  Brown,  1  Richardson,  Law 

(So.  Car.)  351,  493 

Gray  v.  Bowls,  1  Uev.  &  Batt.  Law 

(Nor.  Car.)  437,  406 

Grav,  Caperton  v.  4  Yerg.  (Tenn.) 

563,  01 

Gray,  Elliott  v.   4  Stew.  &  Port. 

(Ala.)  168,  405 

Gray,  Hatton  v.  2  Ch.  Gas.  164,  75 

Gray  v.  Jenkins,  24  Ala.  516,  496 

Gray  v.  McDonald,  19  Wis.  213,  231 
Gray  v.  Merrill,  11  Bush,  (Ky.)  633,  421 
Gray,  Moore  v.  26  Ohio  St.  525,  392 
Gray  v.  MacLean,  17  111.  404,  405 

Gray,  Parrish  v.  1  Humph.  (Tenn.) 

88,  504 

Gray,  Wyman  v.  7  Harris  &  Johns. 

(Md.)  409,  54 

Gray's  Exrs.  v.  Brown,   22   Ala. 

262,  202,  299 

Grayson  v.   Atkinson,  2  Ves.  Sr. 

454,  75 

Greenlaw,  Jones  v.  6  Cold.  (Tenn.) 

:M2,  83 

Greenleaf,  Odlin  v.  3  New  Hamp. 

270,  199 

Greenly,  Olmstead  v.  18  Johns.  12,  51 
Greenhood,  Wakefield  v.  29  Cal. 

597,  60 


SEcnoN 
Greathousew.  Hord,  1  Dana  (Ky.) 

105,  218 

Greathouse,  Snider  v.  16  Ark.  72, 

n9,  527 
Greenawalt  v.  Kreider,   3  Pa.   St. 

264,  207 

Greer,    Williams   v.    4  Haywood 

(Tenn.)  235,  184 

Greenlee  v.  Lowing,  35  Mich.  63,    420 
Greenfield  v.  Yates,  2  Rawle  (Pa.) 

158,  101 

Greenough  v.  McClelland,  2  Ell.  & 

Ell.  424,  17,328 

Greene  v.  Cramer,    2  Conner    & 

Law.  54,  76 

Greene,  Erwin  v.  5  Robinson  (La.) 

70.  105 

Greene  v.  Stames,  1  Heisk.  (Tenn.) 

582,  192 

Greene,  People  v.  5  Hill  (N.  Y.) 

647,  433 

Greene's  Exrs.  v.  Ferrie,  1    Des- 

sausure  (So.  Car.)  164,  280 

Green,  Brant  v.  6  Leigh  (Va.)  16        76 
Green,  Bowdich  v.  3  Met.  (Mass.) 

360,  235 

Green  v.  Creswell.  10  Adol.  &  Ell. 

453  ;  Id.  2  Perry  &  Dav.  430,    46,  47 
Green  v.  Crockett,  2  Dev.  &  Bat. 

Eq.  390,  204 

Green,  Head  v.  5  Bissell,  311,  81 

Green,    Guardians     of    Litchfield 

Union  v.  1  Hurl.  &  Nor.  884,        289 
Green,   Milner  v.  2    Johns.   Cas. 

283,  431 

Green,  Mellish  v.  5  Grant's,  Ch.  R. 

655,  378 

Green,  Roberts  v.  31  Ga.  421,  426 

Green  v.  Wynn,  Law  Rep.  4  Ch. 

Appl.  Cas.  204,  123 

Green  v.  Wynn,  Law  Rep.  7  Eq. 

Cas.  28,  123 

Green,  Wade  v.  3  Humph.  (Tenn.) 

547,  185 

Green  v.  Wardell,  17  111.  278,  445 

Green  v.  Young,  8  Greenl.  (Me.) 

14,  113 

Green,  Admr.  of  Wilson  v.  25  Vt. 

450,  201,  520 


TABLE   OF   CASES. 


Ixvii 


0&i^ 


Section 
Gregg,  Riley  v.  16  Wis.  666,  17,  309 
Gregg  V.  Wilson,  50  Ind.  490,  82 

Gregory,  Bently  v.  7  T.  B.  Mon. 

(Ky.)  368,  198 

Gregory  v.  Gleed,  33  Vt.  405,  6,  68 
Gregory  v.  Logan,  7  Blackf.  112,  68 
Gregory  v.    Murrell,  2  Ired.  Eq. 

(Nor.  Car.)  233,  233 

Green,  Parham  v.  64  (Nor.  Car.)  436,  257 
Gregory  v.  Williams,  3  Meriv.  582,  58 
Green,  Voiles  v.  43  Ind.  374,  '  332 
Greaves,  In  re,  1  Cromp.  &  Jev.  374, 

20,38 
Greve,  Ham.  v.  34  Ind.  18,  348,  365 
Greely  v.  Dow,  2  Met.  (Mass.)  176 

301,  306 
Gridley  v.  Capen,  72  ID.  11,  92 

Grieff  v.  Eirk,  17  La.  An.  25,  393 

Griff,*.  Steamboat  Stacy,  12  La. 

n.  8,  390 

Triggs,  Longley  v.  10  Pick,  121,  225 
Grice  v.  Ricks,  3  Dev.  Law  (Nor. 

Car.)  62,  168 

Grieve  r.  Smitli,   23  Up.  Can.  Q. 

B.  R.  23,  345 

Grim  V.   School  Directors,  51  Pa. 

St.  219,  357 

Grider  v.  Payne,  9  Dana  (Ky.)  188,  273 
Grisgsby,  Yerby  v.  9  Leigh  (Va.) 

387,  75,  76 

Grimes  v.  Butler,  1  Bibb  (Ky.)  192,  443 
Grimes  v.  Nolen,  3  Humph.  (Tenn.) 

412,  325 

Grimes,  Perigo  G.  M.  &  T.  Co.  v. 

2  Colorado,  651,  416 

Griffin,    Canby    v.    3   Harrington 

(Del.)  333,  431 

Griffin,  Goodman  v.  3  Stew.  (Ala.) 

160,  206 

Griffin  V.  Hampton.  21  Ga.  198,  264 
Griffin,  Lee  v.  31   Miss.  632,  275 

Griffin  V.  Moore.  2  Kelly  (Ga.)  331. 

4'i6,  428 
Griffin,  Marsh  v.  42  Iowa,  403,  331 

Griffin  V.  Orman,  9  Florida,  22,  2G0 
Griffin  V.  Rembert,   2  Rich.   Law. 

N.  S.  (So.  Car.)  410,  96,  175 

Griswold,  Jackson  v.  4  Hill  (N.  Y.) 

522,  524 


Section 
Griswold,  Roberts  v.  35  Vt.  496,  9,  100 
Griffith,  Draught  v.  16  Iowa,  26,  264 
Griffith,  Champion  v.  13  Ohio,  228, 

147,  148 
Griffith  V.  Reynolds,  4  Gratt.  (Va.) 

46,  253 

Griffith  V.  Turner,   4  Gill    (Md.) 

Ill,  520 

Gross  V.  Parrott,  16  Cal.  143,  313 

Grove  v.  Dubois,  1  Term  R.  112,  67 
Grover,  Barney  v.  28  Vt.  391,  177 

Grover&  Baker  S.  M.  Co.,  Wright 

V.  82  Pa.  St.  80,  269 

Grover,  Brown  v.  6  Bush  (Ky.)  1,  536 
Grover  v.  Hoppock,  2  Dutcher  (N. 

J.)  191,  214,  308 

Grover,  Fletcher  v.W  New  Hamp. 

368,  251 

Grover,  Towne  v.  9  Pick.  306,  60 

Groot,  Whitney  v.  24  Wend.  82,  167 
Groot,  Whitney  v.  24  Wend.  82,  137 
Groves,  Kay  v.  3  Moore  &  Payne, 

634,  135 

Groves,  Kay  v.  6  Bing.  276,  135 

Grocer's    Bank   v.    Kingman,    16 

Gray,  473,  12,  343 

Grubb  V.  Bullock,  44  Ga.  379,  436 

Grundy  v.  Meighan,  7  Irish  Law 

Rep.  519,  122 

Gryle,  Gryle  v.  2  Atkyns,  177,  75 

Guardians  of  Litchfield  Union  v. 

Green,  1  Huri.  &  Nor.  884,  289 

Guenther,  Ernestine  Appeal  of,  40 

Wis.  115,  116 

Guion  V.  Ford,  12  Robinson  (La.) 

123,  438 

Guise,  Simmons  v.  46  Ga.  473,  316 

Guild  V.  Butler,  5,  The  Reporter, 

15,  374 

Guild,  Haseltine  v.W  New  Hamp. 

399,  188 

Guillot,  Ancion  v.  10  La.  An.  124,  12 
Gull  V.  Lindsay,  4  Wels.  Hurl.  & 

Gor.  45,  48 

Gunter,    Rosenbaum   v.  2  E.   D. 

Smith  (N.  Y.)  415,  68 

Gunn,  Edwards  v.  3  Ct.  316,  426 

Gunn  V.  Madigan,  28  Wis.  158,  89 

Gunn,  Rawle  v.  4  Bing.  N.  C,  445,    38 


Ixviii 


TABLE    OF    CASES. 


Section 

Gurney,  Hubbard  v.  64  New  York, 
457,  17, 316 

Gurney,  Tatten  v.  17  Mass.  182,        59 

Gustine  v.  Union  Bank,  10  Robin- 
son (La.)  412,  325,  329 

Guthrie  v.  Morrison,  1  Han-ington 
(Del.)  368,  436 

Guthrie,  Steadman  v.  4  Met,  (Ky.) 
147,  158 

Guy,  Lucas  v.  2  Bailey  Law  (So. 
Car.)  403,  257 

Gwathney,  Johnston  v.  2  Bibb  (Ky.) 
ISO,  443 

Gwj'n  V.  Patterson,  72  Nor.  Car, 
189,  355 

Gwynne  v.  Bumell,  7  Clark  &  Fin- 
nelly,  572,  468 

Gwynne,  Collins  v.  2  Moore  & 
Scott.  640,  474 


Hackleman  v.   Miller,  4    Blackf. 

(Ind.)322,  53 

Hacker,    Johnson    v.     8    Heisk. 

(Tenn.)  388,  324 

Hadeu   v.   Brown,    18     Ala.    641, 

206,  296 

Haddens  v.   Chambers,   2  Dallas, 

(Pa.)  236,  189 

Hadloy,  HoU  v.  4  Neville  &  Man. 

515,  350 

Hagler,   Jones    v.   6    Jones     Law 

(Nor,  Car.)  542,  126 

Hagey  v.  Hill,  75  Pa.  St.  108,  329 

Haggerty,  Brown  v.  26  111.  469, 17,  293 
Hager,  Fluck  v.  51  Pa.  St.  459,  288 
Hagar  v.  Mounts,  3  Blackf.  (Ind.) 

57,  362 

Hagadom,  Pickney  v.  1  Duer  (N. 

Y.)  89,  76 

Hain,  Byerle  v.  61  Pa.  St.  226,  467 

Haines  v.  Dennett,   11    New    H. 

180,  333 

Hairston  v.  Hughes,  3Munf.  (Va.) 

568,  494 

Haigh  V.  Brooks,  10  Adol.  &  Ell. 

309,  72 

Haight,  Mains  v.  14  Barb.  (N.  Y.) 

76,  82,  85 


Section 
Haight,  Redfield  v.  27  Conn.  31 

30,  82,  187 
Haley,  Skofield  v.  22  Me.  164,  172 

Halsey,  Lafarge  v.  1  Bosw.  (N.  Y.) 

171,  203 

Halliburton  v.  Carter,  55  Mo.  435,  189 
Halliday  v.  Hart,  30  New  York, 

474,  306, 537 

Halsa,  Halsa  v.  8  Mo.  303,  68 

Halstead  v.  Brown,  17  Ind.  202, 

208,  308 
Hale,  Archer  v.  1  Moore  &  Payne, 

285,  410 

Ha^e,  Archer  v.  4  Bingham,  464,  416 
Hale,  Beekman  v.  17  Johns.  134,  161 
Hale  V.  Commonwealth,  8  Pa.  St. 

415,  481 

Hale,  Foster  v.  3  Vesey,  Jr.  696,  66 
Hale  V.  Russ,  1  Greenl.  (Me.)  334,  440 
Hale,  Salisbury  v.  12  Pick.  416,  173 
Hall,  Blackhouse  v.  6  Best  &  Smith, 

507,  93 

Hall,   Cailleux  v.  1  E.   D.   Smith 

(N.  Y.)  5,  52 

Hall,  Clompton's  Exi-s.  v.  51  Miss. 

482,  9 

Hall  V.  Constant,  2  Hall  (N.  Y.) 

205,  306 

Hall  V.  Cushman,  16  New  Hamp. 

462,  233 

Hall  V.  Farmer,  5  Denio,  484,  74 

Hall  V.  Fowler,  6  Hill,  630,  409 

Hall,  Hodges  v.  29  Vt.  209,  46 

Hall  V.  Hall,  34  Ind.  314,  25 

Hall  V.  Hall,  10  Humph.   (Tenn.) 

352,  177 

Hall,  Hickman  v.   5  Littell  (Ky.) 

338,  210 

Hall  V.  McHenry,  19    Iowa,  521, 

332,  333 

Hall  V.  Newcomb,  3  Hill  (N.  Y.) 

233,  150 

Hall    V.  Newcomb,   7    Hill,   416, 

150,  153 

Hall  V.  Rand,  8  Ct.  560,  136,  537 

Hall    V.   Robinson,    8    Ired.  Law 

(Nor.  Car.)  56,  233 

Hall  V.  Rodgers,  7  Humph.  (Tenn.) 

536,  53 


TABLE   OF   CASES. 


Ixix 


Section  |  Section 

Hall,  Reynolds  v.  1  Scam.  (111.)  35,  470   Hamilton,  Ritter  v.  4  Texas,  325,    503 


Hall,  Scott  V.  6  B.  Mon.  (Ky.)  285,  309 
Hall  V.  Smith.   5  Howard  (U.  S.) 

96,  ISO 

Hall,  Sparks  v.  J.  J.  Marsh.  (Ky.) 

35,  296 

Hall  V.  Soule,  11  Mich.  494,  67 

Hall,  Stearns  v.  9  Gush.  31,  67 

Hall,  Thompson  v.  16  Ala.  204,  6S 

Hall  V.  Thompson,  9  Up.  Can.  C. 

P.  R.  257,  123 

Hall,  Thompson  v.  45  Barb.  (N. 

Y.)  214,  352 

Hall,  Treasurer  of  Pickaway  v.  3 

Ohio,  225,  494 

Hall,    Williamson's    Admr.    v.    1 

Ohio  St.  190,  411 

Hall  V.  Williamson's  Admr.  9  Ohio 

St.  17,  411 

Hall  V.  White,  27  Ct.  488,  438,  525 
Hall,  Queen  v.  1  Up.  Can.  G.  P.  R. 

406,  142 

Hall's  Admr.  v.  Creswell,  12  Gill. 

&  Johns.  (Md.)  36,  182 

Hamblin  v.  McCallister,    4  Bush 

(Ky.)  418,  508 

Hamner  v.  Mason,  24  Ala.  480,  492 
Hammock  v.  Baker,   3  Bush  (Ky.) 

208,  421 

Hamlin,  McQuewans  v.  35  Pa.  St. 

517,  10 

Haman  v.  Howe,  27  Gratfc.  (Va.) 

676,  S'jO 

Ham  V.  Greve,  34  Ind.  18,  348,  365 
llAm,   Norris  v.  R.   M.   Charlton 

(Ga.)  267,  271 

Hamar  v.  Alexander,  5  Bos.  &  Pul. 

241,  59 

Hamer,  Newell  v.  4  Howard  (Miss.) 

684,  27,  206 

Hamilton,  Beesly  v.  50  111.  88,  349 

Hamilton    v.    Bryant,    114    Mass. 

527,  409 

Hamilton,  Butler  r.  2  Desaussure, 

Eq.  (So.  Car.)  226,  296 

Hamilton    v.     Dunklee,     1     New 

Hamp.  172,  428 

Hamilton,  Montgomery  v.   43  Ind. 

451,  300 


Hamilton    v.   Van  Rensselaer,    43 

New  York,  244,  110 

Hamilton    v.   Van  Rensselaer,    43 

Barb.  (N.Y.)  117,  92 

Hamilton  v.  Watson,  12  Clark  & 

Finnelly,  109,  305 

Hamilton  v.  Winterrowd,  43  Ind. 

393,  305 

Hampton,  Griffin  v.  21  Ga.  198,  204 
Hampton,  Levy  v.  1  McCord  Law 

(So.  Car.)  145,  18 

Hampton  v.  Levy,  1   McCord  Eq. 

(So.  Car.)  107,  389 

Hampton,  Shehan  v.  8  Ala.  942, 

504,  517 
Hampton,  State  r.  14  La.  An.  690, 

82,  452 
Hampton,  State  v.  14  La.  An.  736,  442 
Hammond,  Bank  v.  1  Rich.  Law 

(So.  Car.)  281,  170 

Hammond  v.  Chamberlin,  2S  Vt. 

406,  84 

Hammond,  Franklin  v.  46  Pa.  St. 

507,  440 

Hammond  v.  Gilmore's  Admr.  14 

Ct.  479,  160 

Hammond,  State  v.  6  Gill.  &  Johns. 

(Md.)  157,  325 

Hammond,  United  States  v.  4  Bis- 

sell,  283,  349 

Hanna  v.  International  Petrolium 

Co.  23  Ohio  St.  622,  418 

Hank   v.   Crittenden,   2   McLean, 

557,  172 

Hannan's  Heirs,  King  v.  6  La.  (Cur- 
ry.) 607,  283 
Hansberger's   Admr.   Kinney,    13 

Gratt.  (Va.)  511,  305 

Hansberger's     Exr.     v.    Geiger's 

Admr.  3  Gratt.  (Va.)  144,  323 

Hancock  v.  Bryant,  2  Yerg.  (Tenn.) 

476,  206, 207 

Hancock,  Governor  v.  2  Ala.  728,  483 
Hancock,  Pameli «;.  48  Cal.  452,  399 
Handley,  Gan-ett  v.  4  Barn.  &  Cres. 

G64.  "  96,  97 

Handley,  Spencer  v.  5  Scott  (N.  R.) 

546,  354 


Ixx 


TABLE   OF    CASES. 


Sectiox 
Hanson  v.  Barnes,  9  Gill  &  Johns. 

(Md.)  359,  66 

Hanson  v.  Crawley,  41  Ga.  303,  333 
Hanson,   Whitehouse  v.  42  New 

Hamp.  9,  46,  223 

Hansford,  Burton  v.  10  West  Va. 

470,  152,  153 

Hanford  v.  Higgins,  1  Bosw.  (X. 

Y.)  441,  62 

Hanford,  Quin  v.  1  Hill,  82,  49,  60 

Hanford  v.  Rogers,  11  Barb.  (N. 

T.)  18,  73 

Happe  r.  Stout,  2  Cal.  460,  70 

Harback,  Gardiner  v.  21  111.  129,  ^34 
Hard,  Quinn  v.  43  Vt.  375,  353 

Hardman,  Walker  v.  4  Clai-k  & 

Finnelly,  258,  107 

Hardcastle  v.  Commercial  Bank,  1 

Harrington  (Del.)  374,  281 

Hardesty,  Jones  v.  10  Gill.  &  Johns. 

404,    '  58 

Hardy,  Blood  v.  15  Me.  61,  76 

Hardy,  Xelson  v.  7  Ind.  364.  49 

Hardwick  v.  Wright,  35  Beavan, 

133,  375 

Harbin,  Lewis  v.  5  B.  Men.  (Ky.) 

564,  296 

Harbert  v.  Dumont,  3  Ind.  346,  301,  309 
Harker,  Bonsai  v.   2  Harrington 

(Del.)  327,  436 

Hargreave  v.  Smel,  6  Bing.  244,  132 
Harger  r.   McCollough,  2    Denio, 

119,  26 

Harman  v.  Howe,  27  Gratt.  (Va.) 

676,  415 

Harmon,  Pitzer  ».  8  Blackf.  (Ind.) 

112,  181 

Harral,   Reynolds  v.  2  Strobhart 

Law  (So.  Car.)  87,  441 

Harrisburg  Bank  v.  German,  3  Pa. 

St.  300,  261,  281 

Harrold,  Glen  Cove  Mut.  Ins.  Co. 

r.  20  Barb.  (N.  Y.)  298,  74 

Harold,  Anderson  r.  10  Ohio,  -399.  75 
Harrop,  Buckmaster  v.  7  Vesey,  341,  76 
Harper,  Aldridge  v.  10  Bingham, 

118,  416 

Harter  r.  Moore,  5  Blackf.  (Ind.) 

367,  352 


Section 
Hartland,  Xash  v.  2  Irish  Law  Rep. 

190,  70,  103 

Hartley,  People  v.  21  Cal.  585,  127 
Hartshorn,  Penniman,  13  Mass.  87,  75 
Harwood  v.  Kiersted,  20  111.  367,  9 
Hazard  Powder  Co.  Martin  v.  2 

Colorado,  596,  70 

Hare  v.  Grant,  77  Nor.  Car.  203,  184 
Harlan  v.  Wingate,  2  J.  J.  Marsh. 

(Ky.)  138,  209 

Hamman  v.  Egbert,  36  Iowa,  270,  504 
Harrington  v.  Dennie,  13  ilass.  93,  4-30 
Harrington,  Newlan  v.  24  111.  206,  333 
H?rsh  r.  Klepper,  28  Ohio  St.  200,  330 
Harshman  v.  Armstrong,  43  Ind. 

126,  226 

Harp  V.  Osgood,  2  Hill  (N.  T.)  216, 

426,  440 
Harley  v.  Stapleton's  Admr.,  24  Mo. 

248,  185 

Harley,  Trent  Navigation  Co.   10 

East,  34,  391 

HarracUne,  Pooley  v.  7  EU.  &  Black. 

431,  17,  19.  328 

Hart,  Battle  v.  2  Dev.   Eq.   (Nor. 

Car.)  31,  219 

Hart  V.  Clouser,  30  Ind.  210.  331 

Hart,  Dock  v.   7  Watts  &  Serg. 

172,  33 

Hart,  Halliday  v.  30  New  York, 

474,  306,  537 

Hart  V.  Hudson,  6  Duer  (X.  Y.) 

294,  316 

Hart,  Kounts  v.  17  Ind.  329,  331 

Hart,  Rhodes  v.  51  Ga.  320,  333 

Hart,  Tallmadge  v.  2  Day  (Conn.) 

381,  59 

Hart,  Wilson  ».  7  Taunt.  295,  76 

Hart  V.  Woods,   7  Blackf.  (Ind.) 

568,  76 

Harris'  Admr.  Bentley  r.  2  Gratt. 

(Va.)  358,  222,  415 

Harris   v.   Brooks,  21   Pick.    195,     17 

46,  211 
Harris  v.  Clap,  1  Mass.  308,  93 

Harris  v.  Carhsle,  12  Ohio,  169,  239 
Harris,  ElUott  v.  9  Bush  (Ky.)  237,  213 
HaiTis  V.  Ferguson,  2  Bailey  Law 

(So.  Car.)  .397,  222 


TABLE    OF    CASES. 


Ixxi 


Section 
Haxris  v.    Huntbacli,    1    Burrow, 

373,  44 

Harris  v.  Newell,  42  Wis.  687,  1,  208 
Hards  V.  Pierce,  6  Incl.  162,  153 

Harris,  Sabine  v.  12  Iowa,  87,  172 

Harris,  Scott  v.  76  Nor.  Car.  205,  309 
Harris  v.  Simpson,  4  Litteil  (Ky.) 

165,  434 

Harris,  Varnam?;.  1  Hun  (N.  Y.) 

451,  23 

Harris  v.  Venables,   Law  Rep.  7 

Exch.  235,  8 

Harris,  Voltz  v.  40  III.  155,  172,  173 
Harris  v.  Warner,  13  Wend.  400,  224 
Harris,  Wright  v.  31  Iowa,  272, 

335,  481 
Harris  v.  Young-,  40  Ga.  65,  9 

Harriss  v.   Fawcett,  Law  Rep.  15 

Eq.  Cas.  311,  114 

Harriss   v.   Fawcett,   Law  Rep.  8 

Chan.  Appl.  Cas.  866,  114 

Harrison,   Corporation  of  Whitby 

V.  18  Up.  Can.  Q.  B.  R.  606,         445 
Harrison  v.  Field,    2  Wash.  (Va.) 

136,  80,  117 

Harrison,  Farmers  &  Traders  Bank 

V.  57  Mo.  503,  310 

Harrison,  Floyd  v.  4  Bibb    (Ky.) 

76,  55 

Harrison,  Hoboken  v.  1  Vroom  (N. 

J.)  73,  12,  31 

Harrison,  Johns  t'.  20  Ind.  317,  333 
Harrison  v.   Lane,   5  Leigh  (Va.) 

414,  463 

Harrison  v.  Philhps,  46  Mo.  520,  237 
Harrison  v.  Sawtel,  10  .Johns.  242,  46 
Harrison  v.  Seymour,  Law  Rep.  1 

Com.  PI.  518,  m 

Harrison,  Smith  v.  33  Ala.  706,  260 
Harrison,  State  v.  Harper  Law  (So. 

Car.)  88,  456 

Harrison  v.  Turbeville,  2  Humph. 

(Tenn.)  242,  336 

Harrison,    Wardlaw    v.   11    Rich. 

Law  (So.  Car.)  626,  159 

Harrison's   Exrs.  v.   Price's  Exrs. 

25  Gratt.  (Va.)  553,  507,  513 

Hargreaves  v.  Parsons,  13  Mees.  & 

Wels.  561,  58 


Section 
Hargreave  v.  Smee  6  Bing,  244,  78 
Hai'greave  v.  Smee,   3    Moore  & 

Payne,  573,  132 

Hargroves  v.  Cook,  15  Ga.  321,  9,  68 
Hartman  v.   Burliugame,   9    Cal. 

557,  17,  208 

Hartman  v.  Danner,  74  Pa.  St.  36,  310 
Hartman,  Meyer  v.  72  III.  442,  49,  52 
Hartman,  Mon-ison  v.  14  Pa.  St.  55,  382 
Hartnoll,  Cripps  v.  4  Best  &  Smith, 

414,  45,  46 

Hartwell    v.   Smith,    15    Ohio  St. 

209,  2.30 

Hartwell  v.  Whitman,  .36  Ala.  712,  233 
Harvey  v.  Bacon,  9  Yerg.  (Tenn.) 

308,  503 

Harvey,   Huntington  v.  4    Conn. 

124,  61 

Harvey,  Peabody  v.  4  Conn.  119,  61 
Harvey's  Exr.  Step  toe's  Admr.  v. 

7  Leigh  (Va.)  501,  .327 

Harding,  Neel  v.  2  Met.  (Ky.)  247,  17 
Harding,  Singstack  v.  4  Harr.  & 

Johns.  186,  70 

Hastings  v.  Clendaniel,  2  Del.  Ch. 

R.  165,  333 

Hasty,  Eaton  v.  6  Nebraska,  419,  260 
HasseH  v.  Long,  2  Maule  &  Sel. 

363,  139 

Haseltme  i'.  Guild,  11  New  Hamp. 

390,  188 

Haseltine,  Otis  r.  27  Cal.  80,  73 

Hasleham  v.  Yoimg,  5  Ad.  &  Ell. 

(N.  S.)  833,  10 

Haslock    V.    Fergusson,  7  Ad.   & 

Ell.  86,  59 

Hastie,    Couturier  v.  5  House    of 

Lords  Cas.  673,  67 

Hastie,  Couturier  v.  8  Wels.  Hurl. 

&  Gor.  40,  57 

Hastie  v.  Couturier,  9  Wels.  Hurl. 

&  Gor.  102,  •     57 

Hasey,  Myrick  v.  27  Me.  9,  ':     36 

Haskell,  Bank  v.  51  New  Hamp. 

116,  211,  360 

Haskins,  Charles  v.  11  Iowa,  329, 

484,  488 
Hatfield,  Dixon  v.  2  Bing.  439,  63 

Hatton  V.  Gray,  2  Ch.  Cas.  164,  75 


Ixxii 


TABLE   OF    CASES. 


Suction 
Hatz'  Exrs.  Krampli's  Ex'x   v.  52 

Pa.  St.  525,  1.  5'29 

Hathaway  v.  Davis,  33  Cal.  161,  392 
Hathaway,  Farmers'  &  Mechanics' 

Bank  V.  36  Vt.  539,  361 

Hatch  V.  Antrim,  51  111.  106,  87 

Hatch   V.   Elkins,  65  New  York, 

489,  ^^^ 

Hatch  V.  Hobhs,  12  Gray,  447,  134 

Hatch  V.  Norris,  36  Me.  419,  25 

Hathorn,   Chase   v.   61    Me.    505, 

95,  127 

Hathorn,  State  v.  36  Miss.  491,  473 
Hauck,  Kruttschmitt  v.  6  Nevada, 

163,  464 

Haven  v.  Foley,  18  Mo.  136,  282 

Haven  v.  Foudry,   4  Met.   (Ky.) 

247,  285 

Haviland,  Casky  v.  13  Ala.  314,  521 
Hawley  v.  Bradford,  9  Paige,  200,  22 
Hawkes,  Sadler  v.  1  Roll.  Abr.  27, 

pi.  49,  8 

Hawk,  Gcddis  v.  10  Serg.  &  Rawle 

(Pa.)  33,  207 

Hawk  V.  Geddis,  16  Serg.  &  Rawle, 

23,  82 

Hawk,  Geddis  v.  1   Watts    (Pa.) 

280,  82 

Haw,  Police  Jury  v.  2  La.  (Miller,) 

41,  536 

Haw,  Police  Jury  v.  1  La.  (Miller,) 

41,  349 

Hawes  v.  Armstrong,  1  Scott,  661,  71 
Hawes  v.  Armstrong,  1  Bing.  (N. 

C.)  761,  68,  70,  71 

Hawes  v.  Marchant,  1  Curtis,  136,  5 
Hawkins  v.  Chace,  19  Pick.  502, 

75,  76 
Hawkins    v.    Humble,     5     Cold. 

(Tenn.)  531,  361 

Hawkins  v.   Holmes,  1   P.  Wms. 

770,  75 

Hawkins  v.  May,  12  Ala.  673,  188 

Hawkins  v.  New  Orleans  Print.  & 

Pab.  Co.  29  La.  An.  134,  98 

Hawkins    v.   Ridenhour,    13    Mo. 

125,  215 

Hawkins  v.  Thornton,  1  Yerger, 
(Tenn.)  146,  396 


Section 
Hawkins,  Smith  v.  6  Ct.  444,  299 

Hayman,  Anderson  v.  1  H.  Black. 

120,  62 

Haycraft  r.  Creasy,  2  East,  92,  59 

Haycraft,  Wilde  v.  2  Duvall  (Ky.) 

309,  135 

Hayden  v.  Cabot,  17  Mass.  183 

Hayden  v.    Crane,    1  Lansing  (N. 

Y.)  181,  136 

Hayden,  Melville  v.  3  Bam.  &  Aid. 

593,  137 

Hayden  v.  Rice,  18  Vt.  353,  226 

Haydon   v.    Christopher,    1  J.   J. 

Marsli.  (Ky.)  372,  52 

Hayes  v.  Davis,    18  New  Hamp. 

600,  233 

Hayes,  Elliott  v.  8  Gray,  164,  110 

Hayes  v.  Joseph!,  26  Cal.  535,  295 

Hayes  v.  Little,  52  Ga.  555,  388 

Hayes,    Ranelagli    v.    1    Vernon, 

189,  _  82 

Hayes  v.  Seaver,   7  Greenl.  (Me.) 

237,  496 

Hayes,  State  v.  7  La.  An.  118,  475 

Hayes  v.  Ward,  4  Johns.  Ch.   R. 

123,  82,  204,  205 

Hayes  v.  Wells,  34  Md.  512,      298,  313 
Hays  V.  Ford,  55  Ind.  52,  240 

Hays,    Ranelaugb    v.    1    Vernon, 

189,  205 

Ha,ynes,  Cobb  v.  8  B.  Mon.  (Ky.) 

137,  222 

Haynes  v.  Covington,  9  Smedes  & 

Mar.  (Miss.)  470,  296,  529 

Haynes,  Maxwell  v.  41  Me.  559,  52 

Haynes,  Oxford  Bank  v.   8  Pick. 

423,  154,  168 

Hazard,    Mechanics'    Bank  v.  13 

Johns.  353,  271 

Hazen  v.  Bearden,  4  Sneed  (Tenn.) 

48,  63 

Hazlerigg,   Newman    v.   1    Busb 

(Ky.)  412,  290 

Headington  v.  Neff,  7  Ohio,  229,      617 
Headlee,  Admr.  v.  Jones.  43  Mo. 

235,  317 

Head  v.  Green,  5  Bissell,  311,  81 

Head,  Smyley  v.  2  Rich.  Law.  (So. 
Car.)  590,  128,  215 


TABLE    OF   CASES. 


Ixxiii 


Section 
Heath  v.  DeiTy    Bank,    44    New 

Hamp.  174,  28,  209 

Heath,  Horsey  v.  5  Ohio,  353,  256 

Heath  v.  Kay,    1  Younge  «fc  Jer. 

434,  296 

Heath  v.  Shrempp,  22  La.  An.  167,  487 
Heath's  Garnishees,   Eddy  v.   31 

Mo.  141,  478 

Heard  v.  Lodge,  20  Pick.  53,  532 

Hearn,  Way  v.  11  J.  Scott  (N.  S.) 

774,  303 

Heart  v.  Brj'an,  2  Devereux   Eq. 

(Nor.  Car.)  147,  260 

Heart,  Elkins  v.  Fitzg.  202,  56 

Heart,  Zent's  Exrs.  v.  8  Pa.  St. 

337,  120 

Heaton  v.  Hulbert,  3  Scam.  (111.) 

489,  33,  36,  86 

Heaton,  Joseph  v.  5  Grant's  Ch.  R. 

636,  21, 276 

Hebenstreit,  Frey  v.   1   Robinson 

(La.)  561.  429 

Hebert  v.  Hebert,  22  La.  An.  308,    500 
Iledden,  Pratt  v.  121  Mass.  116,  9 

Hedges  v.  Strong,  3  Oregon,  18,         48 
Hedrick,   Creigh  v.   5   West  Va". 

140,  18 

Heeter  v.  Jewell,    6   Bush  (Ky.) 

510,  487 

Heelis,  Emmerson  v.  2  Taunt.  38,      76 
Heffield  v.  Meadows,  Law  Rep.  4 

Com.  PL  595,  130,  134 

Ileft'erman,  jMauri  v.  13  Johns,  58,  176 
Heidi: nlieimer  v.  Mayer,  10  Jones 

&  Spen.  (N.  T.)  5UG,  107 

Heirs  of  Barr,  Elani  v.  14  La.  An, 

682,  13 

Heintz  v.  Cahn,  29  111.  308,  147 

Heitshu,    Caldwell  v.  9  Watts  & 

Serg.  (Pa.)  51,  8,  361 

Helsey,  Bivins  v.  4  Met.  (Ky.)  78,     349 
Helm's  Admr.  v.  Young,  9  B.  Mon. 

(Ky.)  394,  283 

Helrae,  Williams  v.    1  Dev.    Eq. 

(Nor.  Car.)  151,  196 

Helmrick;  German  Savings  Assn. 

V.  57  Mo.  100,  306 

Helen  v.  Crawford,  44  Pa.  St.  105,  207 
Helgenberg,  Irwin  v.  21  Ind.  106,    513 


Section 
Hemphill,  Tremper  v.  8  Leigh  (Va.) 

623,  363 

Hempstead  v.  Conway,  6  Ark.  (1 

Eng.)  317,  .  209 

Hempstead  v.  Watkins,  6  Ark.    (1 

Eng.)  317,  206 

Henly  v.   Stemmons,    4   B.  Mon. 

(Ky.)  131,  276 

Hendry  v.  Clardy,  8  Fla.  77,  491 

Hendrick     v.    Whittemore,     105 

Mass.  23,  46 

Hendrickson    v.     Hutchinson,     5 

Butcher  (N.  J.)  180,  17 

Hendrie  v.  Berkowitz,  37  Cal.  113,  537 
Henty,  Clarke  v.  3  Younge  &  Coll. 

(Exch.)  187,  317 

Henry «;.  Compton,  2  Head  (Tenn.) 

549,  204 

Henry,  Ward  v.  5  Ct.  595,  180 

Henry's  Admr.  Flucker  v.  27  Ala. 

403,  26 

Ilenck,  Gilbert  v.  30  Pa.  St.  205, 

84,  86 
Hening,  Cherry  v.  4  Wels.  Hurl. 

&  Gor.  631,  75 

Henning,  Preston  v.  6  Bush  (Ky.) 

556,  305 

Henderson's    Admr.   v.    Ardery's 

Admr.  36  Pa.  St.  449,  296 

Henderson,   Burnett  v.  21  Texas, 

588,  445 

Henderson  v.  Coover,  4  Nevada, 

429.  473 

Henderson  v.  Duffee,  5  New  Hamp. 

38,  252 

Henderson,    Admr.    t\    Huey,  45 

Ala.  275,  372 

Henderson  t\  Johnson,  6  Ga.  390,'  68 
Henderson,  Kelly  v.  1  Pa.  St.  495,  429 
Henderson  v.  Marvin,  31  Barb.  (N. 

Y.)  297,  103 

Henderson  v.  Rice,  1  Cold.  (Tenn.) 

223,  7 

Hendricks,    Stanly    v.   13     Ired. 

(Nor.  Car.)  £6.  49 

Hendricks    v.    Whittemore,     105 

Mass.  23.  229 

Henley,  Colgin  v.   6  Leigh  (Va.) 
85,  9,  68,  88 


Ixxiv 


TABLE    OF   CASES. 


Section 
Henley  v.  Stemmons,  4  B.  Mon. 

(Ky.)  131,  265 

Herring  v.  Hoppock,  15  New  York, 

409,  .  423 

Herr,  People  v.  81  III.  125,  480 

Herter,  LaFarge  v.  11   Barb.  (N. 

y.)  159,  27 

Herter,  LaFarge  c.  3  Denio,  157,  27 
Heralson  v.  Mason,  53  Mo.  211,  84 
Hei-tel,  Glyn  v.  8  Taunton,  208,  102 
Hershfield,  Pinney  v.  1  Montana, 

367,  410 

Hereford   v.    Chase,    1    Robinson 

(La.)  212,  371 

Hershler  v.  Reynolds,    22    Iowa, 

152,  325 

Herbert  v.  Hobbs,  3  Stew.  (Ala.) 

9,  206,  209 

Herrick  v.  Borst,  4  Hill  (N.  Y.) 

650,  206 

Herrick,  Gill  v.  Ill  Mass.  501,  62 

Herrick,  Hogaboom  v.  4  Vt.  131, 

205,  206,  208,  211, 
Herrick  v.  Orange  Co.  Bank,  27  Vt. 

584,  391 

Hess  V.  Fox,  10  Wend.  436,  38 

Hess'  Estate,  69  Pa.  St.  272,  269 

Hetfield  v.  Dow,  3  Dutch.  (N.  J.) 

440,  62,  63 

Hetherington  v.  Bank  at  Mobile, 

14  Ala.  68,  382 

Hetherington  v.   Hixon,    46  Ala. 

297,  6 

Hewett,  Langan  v.  13  Smedes  & 

Marsh,  122,  10 

Hewitt's  Adrar.  v.  Adams,    1  Pat- 
ton,  Jr.  &  Heath  (Va.)  34,  38:5 
Hewitt,  Lilley  v.  U  Price,  494.  77 
Hewitt,  Webb  v.  3  Kay  &  Johns. 

438,  123,  329 

Heydrick,  Barnard  v.  49  Barb.  (N. 

Y.)  62,  75 

Heydock,  Judge  of  Probate  v.   8 

New  Hamp.  491,  93 

Heynemann  v.  Eder,  17  Cal.  433,  407 
Heywood,  Collinge  v.  9  Adol.  & 

Ell.  6:33,  199 

Hibbs.  Kelsey  v.  13  Ohio  St.  340,  55 
Hibbs  r.  Rue,  4  Pa.  St.  348,  109 


Section 
Hicks,  Arnold  v.  3  Ired.  Eq.  (Nor. 

Car.)  17,  204 

Hicks  V.  Bailey,  16  Tex.  229,  182 

Hicks,  Sawyer  v.  6  Watts  (Pa.)  76, 

326,  470 
Hicks,   State  v.  2  Blackf.   (Ind.) 

336,  448 

Hickman  v.  Hall,  5  Littell  (Ky.) 

338,  210 

Hickman  v.  Hollingsworth,  17  Mo. 

475,  510 

Hickman  v.  McCurdy,  7  J.  J.  Mar. 

(Ky.)  555,  250 

Hickok  V.  Farmers'  &  Mechanics' 

Bank,  35  Vt.  476,  206,  208,  352 

Hidden  v.   Bishop,    5    Rhode  Is. 

29,  291 

Hightshue,  Shimer    v.    7    Blackf. 


(Ind.)  238, 


59c 


Highland  Bank,  Lee  v.  2  Sandf. 

Ch.  R.  311,  361 

High  V.  Cox,  55  Ga.  062,  211 

Hight,  Wiley  v.  39  Mo.  130,  310 

Hightowor,    Goodwyn  v.   30    Ga. 

249,  296 

Hightower  v.  Moore,  46  Ala.  387,  113 
Higdon  V.  Bailey,  26  Ga.  426,  17,  374 
Higginson,  Cremer  v.  1  Mason,  323, 

98,  136,  163 
Higgins,  Aldricks  v.  16  Serg.  & 

Rawle.  212,  136 

Higgins,  C.  &  A.  R.  R.  Co.  v.  58 

111.  128,  102 

Higgins,  Hanford  v.  1  Bosw.  (N, 

Y.)  441,  62 

Higgins  V.  Morrison's  Exr.  4  Dana 

(Ky.)  100,  2.35 

Higgins,  Ogier  v.  2  McCord  Law 

(So.  Car.)  8,  427 

Hignutt,  Garey  v.  32  Md.  552,  82 

Hikes  V.  Crawford,  4  Bush.    (Ky.) 

19,  186 

Hiltz  V.  Scully,  1  Cine.  554,  63 

Hilton  V.  Dinsmore,  21  Me.  410,  49 
Hiller,  Apgar's  Admrs.  v.  4  Zabr. 

(N.  J.)  812,  178 

Hillary  v.  Rose,  9  Phila.  (Pa.)  139,  84 
Hilgert,  Commonwealth  v.  55  Pa. 

St.  236,  499 


TABLE   OF   CASES. 


Ixxv 


Section 
Hillyer,  Taylor  v.  3  Blackf.  (Ind.) 

433,  54 

Hilliard,  Treasurers  v.  8  Richard- 
son Law  (So.  Car.)  412,  456,  485 
Hiler,  Apgar's  Admr.  v.  4  Zabris- 

kie  (N.  J.)  812,  46,  187,  198 

Hillhouse,  Breed  v.  7  Ct.  523, 

8,  164,  175 
Hill,  Alcock  V.  4  Leigh  (Va.)  622,  298 
Hill,  Blackstone  Bank  v.  10  Pick. 

129,  805 

Hill  V.  Bostick,  10  Yevg.  (Tenn.) 

410,  319 

Hill  V.  Bonrcier,  29  La.  An.  841,  384 
Hill  V.  Bull,  1  Gilmer  (Va.)  149,  296 
Hill  V.   Calvert,   1  Rich.  Eq.  (So. 

Car.)  56,  335 

Hill,  Carson   v.   1   McMuUen  Law 

(So.  Car.)  76,  356 

Hill,  Conover  v.  76  111.  342,  248 

Hill  Hagey  v.  75  Pa.  St.  108,  329 

Hill,  Jacobs  v.  2  Leigh  (Va.)  393, 

145,  525 
Hill  V.  Johnston,  3  Ired.  Eq.  (Nor. 

Car.)  432,  75 

Hill  V.   Kelly  Ridgeway,  Lapp  & 

Schoales,  (Irish)  265,  263 

Hill  V.  Kemble,  9  Cal.  71,  483,  487 
Hill,  Leech  v.  4  Watts  (Pa.)  448, 

147,  153,  173 
Hill  V.  Mauser,  11  Gratt.  (Va.)  552,  270 
HiU  V.  Morse,  61  Me.  541.  241 

Hill  V.  Raymond,  3  Allen,  540,  62 

Hill  V.  Sewell,  27  Ark.  15,  388,  486 
Hill  V.  Sherman,  15  Iowa,  365,  504 
Hill  V.   Sweetzer,  5  New  Hamp. 

168,  349 

Hill    V.   Witmer,   2    Philadelphia 

(Pa.)  72,  21 

Hill,  Worcester  Savings  Bank  v. 

113  Mass.  25,  8,364 

Hill  V.  Wright,  23  Ark.  530,  180 

Himes,  Mortland  v.  8  Pa.  St.  265,  129 
Hinsdill  V.  Murray,  6  Vt.  136,  2.33 

Hinkley,  McCoUum  v.  9  Vt.  143,  206 
Hiadman  v.  Langford,  3  Strobh. 

(So.  Car.)  207,  51 

Hinchman,  Downey  v.  25  Ind.  453,  44 
Hinely  a.  Margaritz,  3  Pa.  St.  428,      3 


Section 
Hinton,  Cutler  v.  6  Rand.    (Va.) 

509,  64 

Hinde  v.  Whitehouse,  7  East,  558,  76 
Hinds  V.  Ingham,  31  111.  400,  119 

Hine,  Stodt  v.  45  Pa.  St.  30,  49,  50 
Hinkle,  McMullen  v.  39  Miss.  142,  372 
Hinkle,  Stewart  v.  1  Bond,  506,  9,  48 
Hirsh,  Ferguson  v.  54  Ind.  337,  487 
Hirst,  Pease  v.  10  Barn.  &  Cress. 

122,  101,   120 

Hitt,  Humphrey  v.  6  Gratt.  (Va.) 

509,  382 

Hitchcock,    Delaplaine    v.   4    Ed- 
ward's Ch.  321,  27 
Hitchcock  V.  Humfrey,  5  Man.  & 

Gr.  559,  134,  172 

Hitchcock  V.  Humfrey,  6  Scott,  N. 

R.  540,  131,  172 

Hitchcock  V.  Lukens,  8  Port.  (Ala.) 

ooo,  49 

Hitchcock,  Pritchard  v.  6  Man.  & 

Gr.  151,  290 

Hixon,  Hetherington  v.  46  Ala.  297,  6 
Hoad  V.  Grace,  7  Hurl.  &  Nor.  494, 

70,  1.34 
Hoag,  Viele  v.  24  Vt.  46,  209,  210 

Hobson  V.  Base,  Law  Rep.  6  Chan. 

Appl.  Cas.  792,  219 

Hobson  r.  Hobson's  Exr.  8  Bush 

(Ky.)  665,  516 

Hobson,  Johnson  v.  1  Littell  (Ky.) 

314,  105 

Hobson,  Jones  v.  3  Randolph  (Va.) 

483,  499 

Hobbs,  Craig  v.  44  Ind.  363,  354 

Hobbs,  Hatch  v.  12  Gray,  447,  134 

Hobbs,  Herbert  v.  3  Stew.  (Ala.) 

9,  206,  209 

Hobbs  V.  Middleton,  1  J.  J.  Marsh. 

(Ky.)  176,  494,  496,  532 

Hobbs  V.  Rue,  4  Pa.  St.  348,  330 

Hoboken  v.  Harrison,  1  Vroom  (N. 

J.)  73,  12,  31 

Hobart,  Lampson  v.  28  Vt.  700,  55 
Hobart,  Sampson  v.  28  Vt.  697,  50 

Hoblitzell,  Lewis  v.  6  Gill  &  Johns. 

(Md.)  259,  84 

Hocker  v.  Wood's  Exr.   33  Pa.  St. 

466,  124 


Ixxvi 


TABLE   OF   CASES. 


Section 
Hoch,  Weiler  v.  25  Pa.  St.  525,  20r^ 
Hodenpuyl,  Porter  v.  U  Mich.  11,  300 
Hodson,  Morse  v.  5  Mass.  314,  12 

noil<repeth,  Adams  v.  5  Jones  Law 

(Nor.  Car.)  327,  438 

Hodgson  V.  Anderson,  5  Dow.  & 

Ky.  735,  52,  53 

Hodgson  V.  Anderson,  3  Bam.  & 

Cres.  842,  52,  53 

Hodgson  V.  Hodgson,  2  Keen,  704, 

22,  383 
Hodgson  V.  Shaw,  3  Mylne  &  Keen, 

183,  273,  279 

Hodges  V.  Armstrong,  3  Uev.  Law 

(Nor.  Car.)  253,  194 

Hodges  V.  Gewin,  6  Ala.  478,  321 

Hodges  V.  Hall,  29  Vt.  209,  46 

Hodges,   Stokes  ».   11   Rich.   Eq. 

(So.  Car.)  I35,  25 

Hodges,   Whitfield  v.  1  Mees.  & 

Wels.  679,  425 

Hodges,  Whitfield  v.  2  Gale,  127,  425 
Hodge,  Robinson  v.  117  Mass.  222,  496 
Hodge,     Turley     v.     3     Humph. 

(Tenn.)  73,  35,  154 

Hoesback,  McGovern  v.  53  Pa.  St. 

176,  108 

Hoey  V.  Jarman,  89  New  Jer.  Law 

(10  Vroom)  523,  78,  82 

Hoe's  Case  5,  Coke,  70  6.  440 

Hoe,  Steele  v.  14  Add.  &  Ell.  N. 

S.  431,  72 

Hoffman  v.  Bechtel,  52  Pa.  St.  190,  85 
Hoffmann  v.  Schwaebe,   33  Barb. 

(N.  Y.)  194,  217 

Hogshead    v.    Williams,   55  Ind. 

145,  208 

Hoge,  Isett  v.  2  Watts  (Pa.)  128,  84 
Hogaboom  v.  Herrick,  4  Vt.  131, 

205,  206,  208,  211 
Holbrow  V.   WilHns,    1  Bam.   & 

Cress.  10  Id.  2  Dow.  &  Ry.  59,      172 
Hohenthal,  Turnm-e  v.  4  Jones  & 

Spencer  (N.  Y.) 
HoUoman    v.    Langdon,   7    Jones 

Law  (Nor.  Car.)  49,  460 

Holliman  v.  Carroll,  27  Texas,  23,  484 
Hollister  v.  Davis,  54  Pa.  St.  508, 

203,  287 


Section 
Hollingsworth  v.  Floyd,  2  Har.  & 

Gill  (Md.)  87,  266 

Hollingsworth,  Hughes  v.  1  Mur- 
phy (Nor.  Car.)  146,  438 
Hollingsworth,  Hickman  v.  17  Mo. 

475,  510 

Hollingsworth  v.  Tanner,  44  Ga.  11,  374 
HoU  V.  Hadley,  4  Neville  &  Man. 

515,  350 

Ho! comb.  Reed  v.  31  Ct.  360,  53 

Holt  V.  Bodey,  18  Pa.  St.  207,  378 

Holt,  Moore  v.  10  Gratt.  (Va.)  284,  88 
Holt  V.  McLean,  75  Nor.  Car.  347,  142 
Holland  v.  Bouldin,  4  T.  B.  Mon. 

(Ivy.)  147,  437 

Holland  v.  Hoyt,  14  Mich.  238,  76 

Holland  v.  Johnson,  51  Ind.  340,  370 
Holland,  Scroggin  v.  16  Mo.  419,  359 
Holland  v.  Teed,  7  Hare,  50,  98 

Holden,  Ruggles  v.  3  Wend.  210,  206 
Holden  v.  Tanner,  6  La.  An.  74,  15 
Holbrook,  Howard  v.  9  Bosw.  (N. 

Y.)  237,  70 

Holands worth  v.  Commonwealth, 

11  Bush,  617,  4 

Hollier,   Eyre   v.    Lloyd  &  Goold, 

(Temp.  Plunket)  250,  25,  338 

Holly,  Comwell  v.   5  Richardson 

Law  (So.  Car.)  47,  310 

Holly,  Wallace  v.  13  Ga.  389,  489 

HoUinsbee  v.  Ritchey,  49  Ind.  261,  194 
Holmes,  Commonwealth  v.  25  Gratt. 

(Va.)  771,  324,  469 

Holmes  v.  Day,  lOS  Mass.  563,  242 
Holmes,  Dillon  v.  5  Nebraska,  484,  208 
Holmes,    Hawkins  v.  1  P.  Wms. 

770,  75 

Holmes,    Kinchelse.v.   7  B.  Mon. 

(Ky.j  5,  157,  158 

Holmes  v.  Knights,  10  New  Hamp. 

175,  45 

Holmes  v.  Mitchell,  7  J.  Scott,  (N. 

S.)  361,  67 

Holmes  v.  Mackrell,  3  Com.  B.  (N. 

S.)  789,  75 

Holmes  v.  Steamer  Belle  Air,  5  La. 

An.  523,  404 

Holmes,  Sidney  Road  Co.  v.  16  Up. 

Can.  Q.  B.  R.  268,  357 


TABLE   OF   CASES. 


Ixxvii 


Section 
Holmes,  Ten  Eyck  v.  3  Sandf.  Ch. 

R.  428,  283 

Holmes  v.  Weed,  24  Barb.  (N.  Y.) 

546,  187 

Holyoke  t\  Adams,  1  Hun,  N.  Y. 

223;  Id.  13  Bankr.  Reg.  414;  Id. 

59  New  York,  223,  409 

Hommell  v.   Gamewell,  5  Blackf. 

(Ind.)  5,  181 

Homer  v.  Savings  Bank,  7  Ct.  478,  284 
Homan,  Owen  v.  3  Macn.  &  Gor. 

378,  200 

Homan,  Owen  v.  13  Beavan,  196,  329 
Hoppock,  Grover  v.  2  Dutcher  (N. 

J.)  191,  214,308 

Hoppock,  Herring  v.  lb  New  York, 

409,  423 

Hopkirk  v.  M'Conico,  1  Brocken- 

brough,  220,  313,  315 

Hopewell  v.  Bank  of  Cumberland, 

10  Leigh  (Va.)  206,  285 

Hope  V.  Gust,   cited  in  Shiriiff  v. 

Wilks,  1  East,  53,  10 

Hopkins,  Conkey  v.  17  Johns.  113,  46 
Hopkins  v.  Farwell,  32  New  Hamp. 

425,  289 

Hopkins,  Gardiner  v.  5  Wend.  23,  51 
Hopkins    v.    Spurlock,    2    Heisk. 

(Tenn.)  152.  206 

Hopps,  Chambprlain  v.  8  Vt.  94,  14 
Hood,  State  v.  7  Blackf.  (Ind.)  127,  462 
Hoover  v.  Morris,  3  Ohio,  56,  54 

Hooker  v.  Gamble,  12  Up.  Can.  C. 

P.  R.  512,  317 

Hooks  V.  Branch  Bank  at  Mobile, 

8  Ala.  850,  392 

Hoops,  Eneas  v.  10  Jones  &  Spen. 

(N.  Y.)  517,  170,  330 

Hoopes,  Davis  v.  33  Miss.  173,  120 

Home,  Christy's  Admr.  v.  24  Mo. 

242,  504 

Horsefield  v.  Cost,  Addison  (Pa.) 

152,  195 

Hortop,  Taylor  v.  22  Up.  Can.  C. 

P.  R.  542,  339 

Hord,  Greathouse  v.  1  Dana  (Ky.) 

105,  218 

Homer,   Burt  v.  5  Barb.  (N.  Y.) 

501,  82,  85 


Section 
Horner  v.  Lyman,  4  Keyes  (N.  Y.) 

237,  397 

Homer  r.  Lyman,  2  Abb.  Rep.  Om. 

Cas.  399,  397 

Horner,  Neff  v.  63  Pa.  St.  327.        331 
Horn  V.  Bray,  51  Ind.  555,  46 

Hom,  Mayor  etc.  of  Wilmington 

V.  2  Har.  (Del.)  190,  139 

Horton  v.  Mannuig,  37  Texas,  23,    147 
Horsey,  Farmers'  Bank  v.  1  Har- 
rington (Del.)  514,  325 
Horsey  v.  Graham,  Law  R.  5  Com. 

P.  9,  67 

Horsey  v.  Heath,  5  Ohio,  353,  256 

Horsey,  Litler  v.  2  Ohio,  209,  515 

Hosea  v.  Rowley,  57  Mo.  357,  305 

Hoskins,  Bowen  v.  45  Miss.  183,      239 
Hossack,  Underwood  v.  38  111.  208, 

7,  8,  147 
Hotchkiss  r.   Barnes,   34  Ct.   27, 

130,  131 
Hotchkiss,  Grant  v.  26  Barb.  (N. 

Y.)  63,  70,  S2 

Hotchkiss  V.  Lyon,  2  Blackf.  (Ind.) 

222,  518 

Hotchkiss,  IMosher  v.  3  Abb.  Rep. 

Omitted  Cas.  (N.  Y.)  326,         70,  83 
Hotchkiss,  Mosher  v.  2  Keyes,  589, 

70,  83 
Hotchkiss,  Perrine  v.  58  Barb.  (N. 

Y.)  77,  183 

Houlditch  V.  Milne,  3  Esp.  86, 

50,  51,  54 
Hough  V.  Aetna  Life  Ins.  Co.  57 

111.  318,  82,  260 

Hough,  Roe  v.  3  Salk.  14,  52 

Houghton  V.  Matthews,  3  Bos.  & 

Pul.  485,  57 

Houghton,  Strader  v.  9  Port.  (Ala.) 

334,  206 

House  V.  Fort,  4  Blackf.  (Ind.)  293,    282 
Houston,   Bordon  v.  2  Tex.   594, 

29,  470 
Houston  V.  Branch  Bank  at  Hunts- 

ville,  25  Ala.  250,  276 

Houston  V.  Dougherty,  4  Humph. 

(Tenn.)  505,  515 

Houston  V.  Hurley,  2  Del.  Ch.  247,  378 
Howie,  Royston  v.  15  Ala.  309,        382 


Ixxviii 


TABLE   OF   CASES. 


Section 
Houston,  Spiers  v.  4  Bligh  (N.  R.) 

515,  98 

Hewlett,  Staats  v.  4  Denio,  550,  70 
Howth,  Flores  v.  5  Texas,  329,  141 
Howry,  Miller  v.   3  Pen.  &  Watts 

(Pa.)  .374,  213 

Howk,  Bvannan  v.   1  Blackf.  Ind. 

392,  309 

Howk,  Kirkpatrick  v.  80  111.  122, 

520,  370 
Howarth,  Samuell  v.  3  Merivale, 

272,  209,  297 

Howes  V.  Martin,  1  Esp.  162,  46,  54 
How  V.  Kemball,  2  McLean,  103,  35 
How,  Stilwell  V.  46  Mo.  589,  225 

Howell,  Camp.  v.  37  Ga.  312,  309 

Howell  V.  Cobb,  2  Cold.    (Tenn.) 

104,  192 

Howell  V.  Jones,  1  Comp.  Mees.  & 

Ros.  97,  317 

Howell  v.  Jones,  4  Tyrwh.  548,  317 
Howell  V.  Lawrenceville  Mfg.  Co. 

31  Ga.  663,  328 

Howell  V.  Reams,  73  Nor.  Car.  391,  269 
Howell,  United  States  v.  4  Wash- 
ington, 620,  313 
Howell,  Williamson  v.  4  Ala.  693,    532 
Howard,  Carr  r.  8  Blackf.  (Ind.) 

190,  208 

Howard  v.  Coshow,  33  Mo.  118,  58 
Howard,  Crawford  v.  9  Ga.  314, 

444,  487 
Howland,  Douglass  v.  24  Wend. 

35,  68,  70,  524 

Howland,  More  v.  4  Denio,  264,  81 
Howard,   Case    v.   41   Iowa,    479, 

165,  318 
Howard  v.  Clark,  36  Iowa,  114,  311 
Howard,   Cox  v.  8  Blackf.  (Ind.) 

190,  327 

Howard  v.  Holbrook,  9  Bosw.  (N. 

Y.)  237,  70 

Howard,  Railroad    Company  v.  7 

Wall.  392,  3 

Howe,  Harman  v.  27  Gratt.  (Va.) 

676,  3-50,  415 

Howe  V.  Mason,  12  Iowa,  202,  480 

Howe  V.  Nickels,  22  Me.  175, 

157,  163,  174 


Section 
Hoyt,  Holland  i\  14  Mich.  238,  76 

Hoy  V.  Braiuhall,   4  C.  E.   Green 

(N.  J.)  563.  21 

Hoy,  Stevenson  v.  43  Pa.  St.  191,  10 
Hozier,  Peck  v.  14  Johns.  346,  431 

Hubert,  Allen  v.  49  Pa.  St.  259,  1 

Hubbard,  Babcock  v.  2  Ct.  536,  178 
Hubbard,  Blaine  v.  4  Pa.  St.  183,  326 
Hubbard,  Curtis  v.  6  Met.   (Mass.) 

186,  337 

Hubbard  v.  Gurney,  64  New  Yoi'k, 

457,  17,  316 

Hubbell  V.  Carpenter,  5  New  York, 

171,  123 

Hubble,  Murphy  v.  2  Duvall  (Ky.) 

247,  349 

Hubbell,  Thomas  v.  15  New  York, 

405,  524 

Hubbell,  Turner  v.  2  Day  (Conn.) 

457,  40 

Huber  v.  Steiner,  2  Scott,  304,  38 

Hubert  v.  Turner,  4  Scott  (N.  R.) 

486,  75 

Hubert  v.  Moreau,  12  Moore,  216,  75 
Huddestone  v.  Briscoe,   11  Vesey, 

583,  66,  75 

Hudson,  Archer  v.  7  Beavan,  551,  345 
Hudson,  Hart  v.   6  Duer  (N.  Y.) 

294,  316 

Hudson  V.   Inhabitants  of  Wins- 
low,  6  Vroom,  (N.  J.)  437,  32 
Hudson,  Penniman  v.  14  Barb.  (N. 

Y.)  579,  85 

Hudson,  Wallace  v.  37  Tex.  456,  22 
Hudspeth,  Spratlin  v.  Dudley  (Ga.) 

155,  91 

Huey,  Henderson  Admr.  v.  45  Ala. 

275,  372 

Huey    V.   Pinney,    5    Minn.    310, 

205,  208,  352 
Huff,  Bucklen  v.  53  Ind.  474,  298 

Huff  V.  Cole,  45  Ind.  300,  308,  331 

Huffman  v.  Hulbert,  13  Wend.  377,  206 
Huffman  v.  Hulbert,  13  Wend.  375,  296 
Hugely,  Sullivan  v.  4S  Ga.  486,  296 
Huggins,  Cuthbert  v.  21  Ala.  349,  458 
Huggins,  Davis  v.  3  New  Hamp. 

231,  208 

Huggins  V.  People,  39  111.  241,  430,  434 


TABLE   OF   CASES. 


Ixxix 


Section 
Hughes  V.  Gordon,  7  Mo.  297,  506 

Hughes,  Hairston  v.  3  Munf.  (Va.) 

568,  494 

Hughes      V.      HoUingsworth,       1 

Murphy  (Nor.  Car.)  146,  438 

Hughes,  Knight  v.  Moody  &  Mai. 

247,  247 

Hughes  V.  Lawson,  31  Ark.  613,  49 
Hughes  V.  Littlefield,  18  Mo.  400,  107 
Hughes,   Looney  v.  26  New  York, 

514,  474 

Huhne  v.  Coles,  2  Simons,  12,  321 

Hulett,  Palis  v.  26  Vt.  308,  282 

Hulett  V.   SouUard,  26  Vt.  295, 

178,  187 
Hulbert,  Heaton  v.  3  Scam.  (111.) 

489,  33,  86 

Hulbert,  Huffman  t;.  13  Wend.  375, 

206,  296 
Hull,  Ellis  V.  23  Cal.  160,  404 

Hull  V.  Sherwood,  59  Mo.  172,  243 

Humble,  Hawkins  v.  5  Cold.  (Tenn.) 

531,  361 

Humphrey,  Farmers  and  Mechan- 
ics Bank  v.  36  Vt.  554,  95 
Humfrey,  Hitchcock  v.  5  Man.  & 

Gr.  559,  134,  172 

Humfrey,  Hitchcock  v.  6  Scott  (N. 

R.)  540,  134,  172 

Humphrey  v.  Hitt  6  Gratt.  (Va.) 

509,  382 

Humphrey,  Pratt  v.  22  Conn.  317,  58 
Humphreys  v.  Crane,  5  Cal.  173,  296 
Humphreys,  Davies  v.  6  Mees.  & 

Wels.  153,  177,  178,  199,  251 

Humphreys,  Leggett  v.  21  How. 

(U.  S.)  66.  93 

Humphreys,  :Noyes   v.    11  Gratt. 

(Va.)  636,  55,  61,  64 

Humphreys,  State  v.  7  Ohio,  224,  491 
Huntingdon  Bank,  Burns  v.  1  Pen. 

&  Watts  (Pa.)  395,  270 

Hungcrford,  Seabury  v.  2  Hill,  80,  150 
Huntbach,  Harris  v.  1  Burrow,  373,  44 
Huntress  v.  Patten,  20  Me.  28,  84,  202 
Hunter's  Admr.  v.  Jett,  4  Rand. 

(Va.)  104,  296,  299 

Hunter,  Bank  of  Toronto  tK  4  Bos- 
worth  (N.  y.)  646,  262 


Section 
Hunter  v.  Clark,  28  Texas,  159,  382 
Hunter  v.  Dickinson,  10  Humph. 

(Tenn.)  37,  170 

Hunter,  FerreU  v.  21  Mo.  436,  354 

Hunter  v.   Richardson,    1   Duvall 

(Ky.)  247,  275 

Hunter  v.  United  States,  5  Peters, 

173,  377 

Hunt  V.  Bate,  Dyer,  272  (a),  9 

Hunt  V.  Burton,  18  Ark.  188,  415 

Hunt  V.  Bridgham,  2  Pick.  581, 

120,  296 
Hunt  V.  Brown,  5  HiU,  145,  74 

Hunt,  Bryan  v.  4  Sneed,  543,  67 

Hunt  V.   Chambliss,  7  Smedes  & 

Mar.  (Miss.)  532,  223,  226 

Hunt  V.  Knox,  34  Miss.  655,      306, 

308,  329 
Hunt  V.  McConnell,  1  T.  B.  Monroe 

(Ky.)  219,  105 

Hunt  V.  Postlewait,  28  Iowa,    427,  309 
Hunt  V.  Roberts,  45  New  York, 

691,  114 

Hunt  V.  Smith,  17  Wend.  179,  297 

Hunt  V.  State,  53  Ind.  321,  355 

Hunt  V.  United  States,  1  Gallison, 

32,  377,  474 

Hunt's  Exr.    Taylor    v.    34    Mo. 

205,  •  496 

Huntington    v.   Harvey,   4  Conn. 

124,  61 

Huntington,  Morse  v.   40  Vt.  488, 

320,  329 
Huntington     v.     Wellington,    12 

Mich.  11,  53,  59 

Hurd,  Shelton  v.  7  Rhode  Is.  403, 

27,  209 
Hurd  V.  Spencer,  40  Vt.  581,  370 

Hurlbert,  Heaton  v.  3  Scam.  (111.) 

489,  36 

Hurlburt,  Newell  v.  2  Vt.  351,  191 

Hurlburt,  Thayer  v.  5  Iowa  (Clarke) 

521,  424 

Hurley  v.  Brown,  98  Mass.  545,  67 

Hurley,   Houston    v.    2    Del.   Ch. 

247,  378 

Hurt,  Watson    v.   6  Gratt.  (Va.) 

633,  147 

Hustis,  Schofield  v.  9  Hun,  157,        497 


Ixxx 


TABLE   OF    CASES. 


Section 
Huston's  Appeal,  69  Pa.  St.  485,  281 
Hutcbins,  Gamage  v.  23  Me.  565, 

119,  168 
Hutcbins  v.  McCauley,   2  Dev.  & 

Bat.  Eq.  (Nor.  Cai-.)  399,  249 

Hutcbinson,     Hendrickson     v.    5 

Dutcher  (N.  J.)  180,  17 

Hutcbinson,  Mayo  v.  57  Me.  546,  4 
Hutchinson,  McLaren    v.  22  Cal. 

187,  49,  52 

Hutcbinson,  Springer  v.  19  Me.  359,  35 
Hutebcraft  v.  Shrout,  1 T.  B.  Mon. 

(Ky.)  206,  461,  491 

Hutson  r.  Field,  6  Wis.  407,  73 

Hutton  V.  Padgett,  26  Md.  228,  68,  70 
Hutton  V.  Williams,  35  Ala.  503,  76 
Huxley,  Norton  v.  13  Gray,  285.  59 
Huzzard  v.  Nagle,  40  Pa.  St.  178,  531 
Hyatt,  Jarvis  v.  43  Ind.  163,  305 

Hyde,  Blecker  v.  3  McLean,  279,  97 
Hyde,  Smith  v.  19  Vt.  54,  63,  116 

Hyde,  Smith  v.  36  Vt.  303,  310 

Hyman,  Anderson  i\  1   H.   Black. 

120,  64 


Ide  V.  Churchill,  14  Ohio  St.  372, 

244,   296 
Ide,  Smith  v.  3  Vt.  290,  68,  72 

Ide  V.  Stanton,  15  Vt.  685,  66 

Igev.  Bank  of  Mobile,  8  Port.  (Ala.) 

108,  313 

Iglehart  v.  State,  2  Gill.  &  Johns. 

(Md.)  235,  532 

lies,   Bamford  v.  3  Wels.  Hurl.  & 

Gor.  .380,  142 

Ilsley  V.  Jones,  12  Gray,  260,  172 

Imlay,  Pearl  Street  Congregation- 
al Society  v.  23  Ct.  10,  374 
Independent    School     District    of 

Montezuma  v.  McDonald,  39  la. 

504,  466 

Inglis  V.  Macdougal,  1  Moore,  196,   126 
Inglis,  Morley  v.  4   Bing.  (N.  C.) 

58,  203 

Inglis,  Morley  v.  5  Scott,  314,  203 

Ingraham    v.   Marine    Bank,    13 

Mass.  208,  468 

Ingraham,  Newell  v.  15  A^'t.  422,        61 


Sectiox 
Ingraham,  Kane  v.   2  Johns.  Cas. 

403,  126 

Ingalls  f.  Dennett,  6  Greenl.  (Me.) 

79,  176 

Ingham's  Admrs.  v.  Combs,  17  Mo. 

558,  458 

Ingham,  Hinds  v.  31  111.  400,  119 

Ingersoll,  Nicbolls  v.  7  Johns.  146,  427 
IngersoU  v.  Roe,  65  Barb.  (N.  Y.) 

346,  5 

Inhabitants  of  Colerain  v.  Bell,  9 

Met.  (Mass.)  499,  468 

Inhabitants  of  Wendell  v.  Fleming, 

8  Gray,  613,  445 

Inhabitants  of  New  Providence  v. 

McEachron,  4  Vroom  (N.  J .)  339,  477 
Inhabitants    of   New    Providence 
McEachron  v.  6  Vroom  (N.  J.) 
528,  477 

Inhabitants  of  Township  of  Free- 
hold, Patterson  ats.  38  New  Jer. 
Law,  255,  468 

Inhabitants  of  Alna  v.  Plummer,  4 

Greenl.  (Me.)  258.  76 

Inhabitants  of  Farmington  v.  Stan- 
ley, 60  Me.  472,  474,  476 
Inhabitants  of  Orono  v.  Wedge- 
wood,  44  Me.  49,  447 
Inkster  v.  First  Natl.  Bk.  of  Mar- 
shall, 30  Mich.  143,  208 
In  re  Albrecht,  17  Bank  Reg.  287,  409 
In  re  Hewitt,  10  C.  E.  Green   (N. 

J.)  210,  263 

International        Petroleum       Co. 

Hanna  v.  23  Ohio  St.  622,  418 

Irael  v.  Douglas,  1  H.  Blackstone, 

239,  52 

Irick  V.  Black,  2  C.  E.  Green  (N. 

J.)  189,  192,  204,  378,  379 

Irish  V.  Cutter,  31  Me.  536,  35,  155 

Irvine,  Miller  v.  1  Dev.  &  Bat.  103,    68 
Irvine,  Pierce  v.  1  Minn.  369,  153 

Irwin,  Alford  v.  34  Ga.  25,  430 

Irwin  V.  Backus,  25  Cal.  214,  532 

Irwin  V.  Helgenberg,  21  Ind.  106,     513 
Irwin,   McCormick's  Admr.  v.  35 

Pa.  St.  Ill,  260 

Irwin,  Pike  v.  1  Sandf.  (N.  Y.)  14, 

53,  60 


TABLE    OF    CASES. 


Ixxxi 


Section. 
Irwin  V.  Sanders,  5  Yerg.  (Tenn.) 

287,  397 

Irwin,  Sutton  v.  12  Serg.  &  Rawle, 

13,  10 

Isaac  V.  Daniel,  8  Adol.  &  Ell.  (N. 

S.)  500,  296 

Isaac,  Mayer  v.  6  Mees.  &  Wels. 

605,  78.  134 

Isham,  Craft  v.  13  Ct.  28,  161,  174,  175 
Isham,  Gilbert  v.  16  Ct.  525,  452 

Isett  V.  Hoge,  2  Watts  (Pa.)  128,  84 
Isley,  Moore  v.  2  Dev.  &  Batt.  Eq. 

(Nor.  Car.)  372,  245 

Ives  V.  Bank  of  Lansingburg,  12 

Mich.  361,  370 

Ivey,  Johnson  v.  4  Cold.  (Tenn.) 

608,  295 

Ives,  Payne  v.  3  Dow.  &  Ryl.  664,  162 
Ives,  Willis  v.  1  Sm.  &  Mar.  (Miss.) 

307,  18 

Iveson,  Other  v.  3  Drewry,  177,        117 


Jacob  V.  Kirk,  2  Moody  &  Rob.  221, 

66,  67,  75 
Jacobs  V.  Hill,  2  Leigh  (Va.)  393, 

145,  525 
Jacobs,  Watson  v.  29  Vt.  169,  48 

Jacoby,   Elbert    v.    8  Bush  (Ky.) 

542,  463 

Jacocks,  Fagon  v.  4  Dev.  Law  (Nor. 

Car.)  263,  233 

Jack  V.  Morrison,  48  Pa.  St.  113,      283 
Jack  V.  People,  19  111.  57,  4 

Jackson    r.    Adamson,    7  Blackf. 

(Ind.)  597,  195 

Jackson,  Ellison  r.  12  Cal.  542,  68 

Jackson,  Fletcher  v.  23  Vt.  581, 

245,  246,  247,  255 
Jackson  v.  Griswold,  4  Hill  (N.Y.) 

522,  524, 

Jackson,  Jackson's  Admr.  v.  7  Ala. 

791,  6 

Jackson  v.  Jackson,  7  Ala.  791,  9 

Jackson  v.  Lowe,  1  Bing.  9,  66 

Jackson,  McKenzie  r.  4  Ala.  230,       49 
Jackson,  Mississippi  Co.  v.  51  Mo. 

23,  447 

Jackson,  Otto  r.  35  Ills.  349,  31 

F 


Section. 
Jackson  r.  Rayner,  12  Johns.  291, 

49,  52 
Jackson,  Reid  v.  1  Ala.  207,  488 

Jackson,  Saunderson  v.  2  Bos.  & 

Pul.  238,  66,  75 

Jackson,  Saunderson  r.  3  Esp,  180, 

66,  75 
Jackson  v.  Van  Dusen,   5  Johns, 

144,  75 

Jackson's    Admr.  Commonwealth 

V.  1  Leigh  (Va.)  485,  446 

Jackson's  Admr.  v.  Jackson,  7  Ala. 

791,  6 

Jacques,  James  v.  26  Texas,  320,  204 
Jacques  V.  Fackney,  64  111.  87,  275 
James,  Baumann  v.  Law  R.  3  Ch. 

App.  508,  67 

James,  Branch  Bank  a  Mobile  v.  9 

Ala.  949,  17,  296 

James  v.  Day,  37  Iowa,  164,  24 

James  v.  Jacques,  26  Texas,  320.  204 
James  v.  Long,  68  Nor.  Car.  218,  124 
James  v.  Patten,  8  Barb.  (N.  Y.) 

344,  75 

James,    Smith     v.    1    IMiles   (Pa.) 

162,  190 

James,   Thurston  v.   6  Rhode  Is. 

103,    '  320 

James  v.  Williams,  3  Nev.  &  Man. 

196,  68,   71 

James  v.  Williams,  5  Bam.  &  Adol. 

1109,  71 

Jameson   v.  Kelly,    1  Bibb.  (Ky.) 

479,  443 

Janes  v.  Scott,  59  Pa.  St.  178,  82,  84 
Jansen,  People  v.  7  Johns.  332, 

209,  474 
Janvrin,  ZoUar  v.  49  New  Hamp. 

114,  409 

Jarman  v.  Algar,  2  Car.  &  P.  249,  56 
Jarman,  Hoey  v.  39  New  Jer.  Law 

(10  Vroom)  523,  78,  82 

Jarman  z\  Wiswall,  9  E.  C.  Green 

(N.  J.)  267,  116 

Jarratt  v.   Martin,    70    Nor.   Car. 

459,  121 

Jarvis  v.  Hyatt,  43  Ind.  163,  305 

Jarvds  v.  Wilkins,  7  Mees.  &  Wels. 

410,  70 


\xxxn 


TAULE   OF    C 

EtCDVS 


Ja«i«r,  BeD'«  Admr.  r.  2  Ired.  Eg. 

(Nor.  Caj.)  .797,  222,  252 

iaxpiit  County  v.  Bhirnks,    CI  M(>. 

Jay,  Waff  r.  Law  Eep.  7  Qaeen's 

B.7ii6,  '^.'^51 

JeffOT,    De  Coties   r.  7  Florida, 

284,  W3 

JeffVrs  *.  JobnsOT,  1  Zabriskie  (3^. 

J.)  73,  191 

J«^';rsyn  County  f .  Slag«e,  66  Pa. 

St.  202,  C3 

Jelierson,  TenueB  p.  5  Harnngton 

(L>tl.>  20e,  213 

Jeffries.  Swyr^  Admr.  48  Mo.  279,  277 
Jemison  r.  Cogens,  3  Ala-  036,  405 
Jewji»on  v.  Govtitnor,  47  Ala.  390,  3B3 
Jeim<i«8  t>.  Ctttler,  12   Kan.  500, 

22,  -310 
Jennr^s  p.  Trae,  30  Me.  438,  116 

JeoHixigis  r.  Sled^,  3  Kelly  (Ga.) 

128,  437 

Jennings,  State  t?.  10  Obio  St.  73,  525 
Jennings,  Thomas  p.  5  Sxned^  & 

Mar.  (Mi««.j  627,  147 

Jennings,  Woolley  r,  5  Bam,  & 

Cres.  165,  134 

Jennison  v.  Parker,  7  Mich.  355,  H^i 
Jenkins  v.  ClarkKon,   7  Ohio,  72, 

208,  298,  306 
Jenkins,    Cooper  v.   32   BeaTan, 

'*i7,  267 

Jenkins,  Dillingljajw  t.  7  Smedes  & 

Mar.  (Mijfs  )  479,  .359 

Jenkins,  Gray  v.  24  Ala.  516,  49fj 

Jenkins,  Kelty  v.  1  IJiJt/^f.N'.Y.) 

73,  310 

Jenkins   v.    McN*;;';/*',',   '-'A    Texas, 

189,  .378 

Jenkins  v.  National  V.  B.  of  iiow- 

doinham,  58  Me.  275,  .385 

Jfmkins,  PufqAe  v.  11  Cal.  500,  29 

Jf'nkins  t.  lleynolds,  6  Moore,  86,  68 
Jwikins  V.  K^.'ynolds,  3  Broderip  & 

Bing.  14,  f;8,  71 

Jenkins,  Itf^erts  v.  19  La.  fCurryj 

453,  17 

Jenkins  t».  Itol>ert»on,  2  Lnrwry, 

a-'il.  27 


JeniiuB    r.    Bkilleni,    5    Te^r 

(Tenn.)  288,  404 

JeukinE.  Wilde  r.  4  Paige,  481,         2^i 
JenyeE,  Thonrton  t.  1  Man.  k  Gr. 

166,  72 

Jepiison  v.  MaaoBell,  10  Ldsli  Eq. 

Jiep.  132,  .389 

JepliBon  f?.  MauDBelL,  10  Iiisli  Eq. 

Bep.  .38,  389 

Jerome,  Casom  r.  58  5few  Tcb-Ic, 

315,  35.3, 496 

Jordin  v.  Loftm,  13  Ala.  547,  .349 

Jeter,  Gilder  r.  11  Ala.  256,  309 

Jeter.  Taylor  v.  2^^  Mo.  244,  371 

Jett,  Honter's  AdmrE.  r.  4  Rand. 

(Va.)  104,  296,  299 

Jerons,  Edwards  r.  8  Man.  Gr,  & 

Soott,  436,  70,  72 

Jewett  V.  Crane,  35  Bsu*.  (N.  Y.) 

208,  216 

Jewell,  Beeter  v.   6  Bodi  (Ky.) 

510,  487 

Jewell,  WiUaoe   t.    21    OHo  Bt 

103,  332 

Joel,  Cooper  v.  1  De  Gex,  Fisli  & 

Jo.  240,  107 

Johns  P.  n-drn^rjTj,  20  Ind.  317,        33:3 
John  V.  Johns,  16  Ala.  454,      227, 

228,247 
Johns  V.  Eace,  18  La.  Aji.  105,  426 
Johns  P.  U^ariLrm,  11  Md.  405,  22,  198 
Johns,  Woodson  p.  3  Manf.  (Va.) 

230,  412 

Johnston,  Ashby  p.  2fj  Ark.  103,      392 
■Johnston  p.  Chapman,  3  Penn.  & 

Watt*  (Pa.J  18,  84,  85 

Johnston    p.    Gwathney.  2   Bibb 

(Ky.)  186,  443, 

Johnston,  Hill  p.  3  Ired.  Eq.  (Nor. 

Car.)  4:^2,  75 

Johnston  p.  Mills,  25  Texas,  704,        84 
Johnston  p.  Nicholls,  1  Han.  Gr. 

&  Scott,  251,  70 

Johnston,  Snevily  p.   1   Watts  & 

Serg.  3fj7,  7 

John>;ion  p.   ThonjpsOD,   4  Watt* 

(Pa.j  44^;,  306 

Jolinson,  Bank  at  Decatur  t.  9  Ala. 

C2I.  391 


TABLE   OF   CASES. 


Ixxxiii 


Section 
Johnson  v.  Boyer,  3  "Watts  (Pa.) 

376,  425 

Johnson  r.  BroTivn,  51  Ga.  498,  97 

Johnson  r.  Clendenin,     5  Gill  & 

Johns.  (Md.)  463,  431 

Johnson,  Comraonwealth  r.  5  Ciish. 

4M,  427 

Johnson  r.  Commonweal tli,  1  Duv. 

(Ky.)410,  4 

Johnson,  Croft  v.  5  Taunt.  319,  425 
Johnson,  Crofts  v.  1  Marshall,  59,  296 
Johnson  r.  Dodge,  17  111.  433,  76 

Johnson  r.   Dodgson,   2  Mees.  & 

Wels.  653,  66,  75 

Johnson  v.  Flint,  34  Ala.  673,  400 

Johnson,  Foster  r.  5  Vt.  60,  253 

Johnson  r.  Fuquay,  1  Dana  (Ky.) 

514,  '  501 

Johnson  r.  Gilbert,  4  Hill,  178,  53 

Johnson,  Henderson  r.  6  Ga.  390,  68 
Johnson  r.  Hacker,  8  Heisk.  (Tenn.) 

383,  324 

Johnson  t\  Hobson,  1  Littell  (Ky.) 

314,  105 

Johnson,  Holland  r.  51  Ind.  346,  370 
Johnson  r.   Ivey,   4  Cold.  (Tenn.) 

608,  295 

Johnson,  Jeffcrs  r.  1  Zabriskie  (N. 

J.)  73,  191 

Johnson,  McCord  v.  4  Bibb  (Ky.) 

531,  514 

Johnson  r.  JIcG ruder,  15  Mo.  365,  76 
Johnson     r.    Mills,    10    Gushing, 

503,  295 

Johnson  r.  Nichols,  10  Conn.  192, 

66,  67 
Johnson  r.  Planters'  Bank,  4  Smedes 

it  Mar.  (Miss.)  16'>.  392 

Johnson,  Prather  v.  3  Harr.  &  Johns. 

(Md.)  487,  179 

Johnson,  Riley  v.  8  Ohio,  526,  353 

Johnson,   Sebastian    v.   2    Duvall 

(Ky.)  101,  13 

Johnson  r.  Searcy,  4  Yerg.  (Tenn.) 

182,  '  ^  296 

Johnson  r.  Shepard.  35  Mich.  115,  83 
Johnson,  Stallings  r.  27  Ga.  564.  307 
Johnson,  Stansfield  r.  1  Esp.  101,  76 
Johnson,  Starry  v.  32  Ind.  438,        383 


Section 
Johnson,  South  Carohna  Society  v. 

1  McCord  Law  (So.  Car.)  41,         139 
Johnson,  Ti-easurers  v.  4  McCord 

Law  (So.  Car.)  458,  377 

Johnson,  Taylor   v.   17  Ga.  521, 

361,  485,  531 
Johnson's  Admrs.  v.  Vaughn,  65 

111.  425,  238, 256 

Johnson,  Ward  v.  6  Munf.   (Va.) 

6,  325 

Johnson  r.  Weatherwax,  9  Kansas    . 

75,  357,  405 

Johnson    r.   Whitchoctt,    1    Roll. 

Abr.  24  pi.  33,  8 

Johnson    v.   "Wilmarth,    13    Met. 

(Mass.)  416,  173 

Johnson,  Wright  r.  8  Wend.  512.  345 
Johnson  r.  Zink,  51  New  York,  333,  24 
Jones,  Adams  t'.  12  Peters,  207,  67,  157 
Jones,  Allen  r.  8  Minn.  202,  286 

Jones,  Andrews  i:  10  Ala.  400,  3S 

Jones  r.  BL\nton,  6  Ired.  Eq.  (Nor. 

Car.)  115,  C:^2,  252,  255,  461 

Jones  r.  Brown,  11  Ohio  St.  601,      315 
Jones,  Board  of  Supervisors  of  Jef- 
ferson Co.  19  Wis.  51,  476 
Jones  V.  Bullock,    3  Bibb  (Ky.) 

467,  378 

Jones  V.  Bradford,  25  Ind.  305,  25C» 
Jones,  Brainard  v.  18  New  York, 

35.  93 

Jones,    Chaffee  v.  19    Pick,  260, 

151,  223,  252,  257 
Jones  r.  Childs,  8  Nevada,  121,  199 
Jones,  Chottau  i\  11  111.  300,  177 

Jones  r.  Council  Bluffs  Bank,  34 

111.  313,  53,  63 

Jones  r.  Cooper,  1  Cowp.  227,  61 

Jones  r.  Crosthwaite,  17  Iowa,  393,  128 
Jones  r.  Davids,  4  Russell,  277,  273 
Jones,  Davis  Sewing  Machine  Co. 

V.  61  Mo.  409,  164 

Jones,  Dolby  v.  2  Dev.  Law.   (Nor. 

Car.)  109,  394 

Jones  V.  Doles,  3  La.  An.  588,  524 

Jones  V.  Fleming,  15  La.. An.  522,  17 
Jones,  Fishburn  r.  37  Ind.  119,  348 
Jones  r.  Fitz,  5  New  Hamp.  444,  231 
Jones,  Goode  v.  9  Mo.  866,  155 


Ixxxiv 


TABLE   OF   CASES. 


Section 
Jones  r.  Goodwin,  39  Cal.  493,  148 
Jones  V.  Greenlaw,  6  Cold.  (Tenn.) 

342,  83 

Jones   V.   Hagler,   6    Jones,   Law 

(Nor.  Car.)  542,  126 

Jones  V.  Hardesty,  10  GUI  &  Johns. 

404,  58 

Jone?,  Headles,  Adiur.  v.  43  Mo. 

235,  317 

Jones    r.    Hobson,    3    Randolph, 

(Va.)  483,  499 

Jones,  Howell  v.  4  TjTwh.  548,  317 
Jones,  Howell  v.  1  Comp.  Mees.  & 

Ros.  97,  317 

Jones,  Ilsley  v.  12  Gray,  260,  172 

Jones,  John  v.  16  Ala.  454,  228,  247 
Jones  V.  Joyner,  8  Ga.  562,  185 

Jones  V.  Keer,  30  Ga.  93,  350 

Jones  V.  Knox,  46  Ala.  53,  126 

Jones,  Lee  v.  14  J.  Scott  (N.  S.) 

336,  367 

Jones,  Lee  v.  17  J.  Scott  (N.  S.) 

482,  367 

Jones  V.  Letcher,  13  B.  Mon.  (Ky.) 

563,  229 

Jones,  Lewis  v.  4  Barn.  &  Cress. 

506,  122 

Jcnes,  Matheson  v.  30  Ga.  306,  17,  352 
Jones,  Mobile  &  G.  R.  R.  Co.  v.  57 

Ga.  198,  53 

Jones  i\  Palmer,  1  Doug.  379,  53,  68 
Jones,  Paul  v.  1  Dum.  &  East,  579,  189 
Jones  V.  Post,  6  Cal.  102,  66,  73 

Jones,  Purefoy  v.  Freeman's  Ch. 

44,  375 

Jones  V.  Quinnipaick  Bank,  29  Ct. 

25,  282 

Jones  V.  Read,  1  Humph.  (Tenn.) 

335,  515 

Jones,  Ross  v.  22  Wallace,  576,  503 
Jones  V.  Ryde,  5  Taunt.  488,  16 

Jones,  Sellers  v.  22  Pa.  St.  423,  334 
Jones    V.    Scanland,    6    Humph. 

(Tenn.)  195,  445 

Jones  V.  Shorter,    1   Kelley  (Ga.) 

294,  46 

Jones,  Shimer  v.  47  Pa.  St.  268,  207 
Jones,  Smith  r.  7  Leigh  (Va.)  165,  76 
Jones,  State  v.  3  La.  An.  9,  434 


Section 
Jones  V.  Thayer,  12  Gray,  443,  121 
Jones  V.  Tincher,  15  Ind.  308.  82 

Joiles  V.  Turner,  5  Littell  (Ky.)  177,  121 
Jones,   United  States  v.  8  Peters, 

399,  362 

Jones,  Vilas  v.  1  New  York,  274, 

209,  310 
Jones,  Vilas  v.  10  Paige  Ch.  R.  76,  309 
Jones  V.  Whitehead,  4  Ga.  397,  1,  512 
Jones  V.  Yeargain,  1    Dev.    Law 

(Nor.  Car.)  420,  16 

Jordan  Admr.  v.  Adams,  7  Ark.  (2 

Eng.)  348,  182 

Jordan  v.  Agawam  Woolen  Co.  106 

Mass.  571,  394 

Jordan  v.  Trumbo,  6  Gill  &  Johns. 

(Md.)  103,  296 

Jordon  v.  Dobbins,  122  Mass.  168,  114 
Josephi,  Hayes  v.  26  Cal.  5-35,  295 

Joseph  V.  Heaton,  5  Grant's  Ch.  R. 

636,  21,  276 

Joslyn  V.  Eastman,  46  Vt.  258,  295 
Joslyn  V.  Smith,  13  Vt.  353,  120,  296 
Josselyn  v.  Ames,  3  Mass.  274,  153 

Joyce,  Joyce  v.  1  Bush  (Ky.)  474,  267 
Joyner,  Bank  of  Montpelier  v.  33 

Vt.  481,  94 

Joyner,  Daniel  v.  3  Ired.  Eq.  (Nor. 

Car.)  513,  193 

Joyner  v.  Cooper,  2  Bailey  Law 

"(So.  Car.)  199,  15,452 

Joyner,  Jones  v.  8  Ga.  562,  185 

Joyner,  Pogue  v.  6  Ark.  (1  Eng.) 

241,  189 

Julian,  Kiton  r.  4  Ellis  &  Black. 

854,  141 

Julius,  Pecker  v.  2  Bro^vne  (Pa.) 

31,  80,  117 

Judah  V.  Mieure,  5  Blackf.  (Ind.) 

171,  254,  257 

Judah,  Murray  v.  6  Cowen,  434,  315 
Judah,  Zimmerman  v.  13  Ind.  286,-  347 
Judah  V.  Zimmerman,  22  Ind.  .388,  347 
Judson,  Decker  v.   16  New  York, 

439,  29 

Judson,  Rindge  v.  24  New  York, 

64,  133 

Judge  of  Probate  v.  Heydock,   8 

New  Hamp.  491,  93 


TABLE    OF   CASES. 


Ixxxv 


Section 
Judge  of  Wayne  Circuit,  Loh  v.  26 

Mich.  186,  514 

Jung,  Meiswinkle  r.  20  Wis.  361,     310 
Justices,  Cameron  v.  1  Kelly  (Ga.) 

36,  494 

Justice,  Cole  v.  8  Ala.  793,  203 

Justices,  Dobbs  v.  17  Ga.  624, 

478,  485,  521 
Justices  V.  Ennis,  5  Ga.  569,  442 

Justices  V.  Selman,  6  Ga.  432,   394,  493 
Justices  r.  Sloan,  7  Ga.  31,  494 

Justices  V.  Woods,  1   Kelly  (Ga.) 

84,  467,  492 


Kagy  V.  Trustees,  etc.  68  111.  75,  467 
Kaighn,  Paulin  v.   3  Dutclier  (N. 

J.)  503,  226 

Kaighn,  Paulin  v.  5  Dutcher  N.  J. 

480,  235 

Kaighn  v.  Fuller  1   McCarter  (N. 

J.)  419,  328 

Kaime,  Supei-visors  of  Omro  c.  39 

Wis.  468,  477 

Kane  v.  Ingraham,   2  Johns.  Cas. 

403,  126 

Kane,  Van  Reimsdyck  v.  1  Gallison 

C.  C.  633,  53 

Kaunon    v.     Neely,    10    Humph. 

(Tenn.)  288,  168 

Karing,  O'Blenis  v.  hi  New  York, 

649,  245 

Kasey,  Lane  v.  1  Met.  (Ky.)  410,  13 
KastnertJ.  Winstanley,  20  Up.  Can. 

Com.  P.  R.  101,  78,  162 

Kaufman  v.  Wilson,  29  Ind.  504.  504 
Kay  V.  Allen,  9  Pa.  St.  320,  159 

Kay  V.  Groves,  6  Bing.  276,  135 

Kay  V.  Groves,  3  Moore  &  Payne, 

634,  135 

Kean,  Peer  v.  14  Mich.  354,  288 

Keane  v.  Fisher,  10  La.  An.  261,  91 
Kearns,  Emmott  v.  5  Bing.  jST.  C. 

5-9,  73 

Kearns,  Emmott  v.  7  Scott,  687,  73 
Kearns,  Emmott  v.  5  Bing.  (N.  C.) 

559,  70 

Keames  v.  Montgomery  4  West  Va. 

29,  1,  147 


Section 
Kearsley  r.  Cole,  16  Mees.  &  Wels. 

128,  329 

Keate  v.  Temple  1  Bos.  &  Pul.  158,  64 
Keating,  Simmons  v.  2  Starkie,  375,  7 
Keaton  v.  Cox,  26  Ga.  162,  82 

Keaton's  Distributees  v.  Campbell, 

2  Humph.  (Tenn.)  224,  502 

Kee  V.  Campbell,  27  Mich.  497,  229 
Keegan,  AVhelan  v.   7  Irish  Com. 

Law  R.  544,  133 

Keeland,  Evans  v.  9  Ala.  42,  201 

Keen,  Augew  v.  1  Mees.  &.  Wels. 

390,  144 

Keen,  Keyser  v.  17  Pa.  St.  327,  357 
Keer  x\  Clark,  11  Humph.  (Tenn.) 

77,  240 

Keer,  Jones  v.  30  Ga.  93,  350 

Keiffer,  Duncan  v.  3  Bin.  (Pa.)  126,  194 
Keily,  In  re,  9  Irish  Ch.  R.  87,  224 
Keith  V.  Dwinnell,  38  Vt.  286,  134 

Keith  V.  Goodwin,  31  Vt.  268, 

46,  94,  223,  332 
Keith,  Ford  v.  1  Mass.  139,  178,  185 
Keller  v.  Rhoads,  39  Pa.  St.  513,  199 
Kellar  r.  Williams,  10  Bush  (Ky.) 

216,  227,  395 

Kellogg,  Baker  v.  29  Ohio  St.  663,  503 
Kellogg  V.  Dunn,  2  Met.  (Ky.)  215,  153 
Kellogg,  Montgomery  v.  43  Miss. 

486,  163,  174 

Kellogg  V.  Stockton,  29  Pa.  St.  460, 

111,  157,  158 
Kelly,  Carpenter  v.  9  Ohio,  106, 

235,  257 
Kelly,  Edwards  v.  6  Maule  &  S.  204, 

49,51 
Kelly  V.  Few,  18  Ohio,  441,  153 

Kelly  V.  Gillespie,   12  Iowa,   55, 

17,  809 
Kelly  V.  Gordon,  3  Head  (Tenn.) 

683,  414 

Kelly  V.  Henderson,  1  Pa.  St.  495,  429 
Kelly,  Jameson  v.  1  Bibb  (Ky.)  479,  443 
Kelly  V.  Matthews,  5  Ark.  (Pike) 

223,  505 

Kelly,  Ridgeway,  Lapp  &  Schoales, 

Hill  V.  (Irish)  265,  263 

Kelly  V.  State,  25  Ohio  St.  567,  445, 487 
Kelsey  v.  Hibbs,  13  Ohio  St.  340,       55 


Ixxxvi 


TABLE   OF   CASES. 


Section 
Kelty  V.  Jenkins,  1  Hilton  (N.  Y.) 

73.  316 

Kemball,  How  v.  2  McLean,  103,  35 
Kemble,  Hill  v.  9  Cal.  71,  483,  487 
Keiup  V.  Finden,  12  Mees.  &  Wels. 

421,  247,  252,  253 

Kemp,  Rittenliouse  v.  37  Ind.  25S,  302 
Kemmerer  v.  Wilson,  31  Pa.  St. 

110,  384 

Kendig,  Conamon wealth  v.  2  Pa. 

448,  14, 481 

Kendrick    v.    Forney,    22    Gratt. 

(Va.)  748,  182,  273 

Kendall,  Wheat  v.  6  New  Hamp. 

504,  19,  307 

Kendall,  Wheat  v.  6  New  Hamp. 

604,  307 

Kennaway  v.  Treleasan,  5  Mees.  & 

Wels.  498,  70 

Kennett,  Baker  v.  54  Mo.  82,  128 

Kennedy  v.  Adams,  5  Harrington 

(Del.)  160,  429 

Kennedy  v.  Carpenter,  2  Wharton 

(Pa.)  344,  117,  245 

Kennedy  v.  Evans,  31  111.  258,  17,  309 
Kennedy  v.  Goss,  38  New  York, 

330,  303 

Kennedy  r.  Pickens,   3  Ired.  Eq. 

(No.  Car.)  147,  278 

Kennedy,  Pierce  v.  5  Cal.  138,  148 

Kennedy,  Price  v.  16  La.  An.  78,  536 
Kennedy,  Zane  v.  73  Pa.  St.  182,  296 
Kenning,  Allan  v.  2  Moore  &  Scott, 

768,  132 

Kennmg,  Allan  v.  9  Bing.  618,  132 
Kenningham  v.  Bedford,  1 B.  Mon. 

(Ky.)  325,  309 

Kenner    v.   Caldwell,   Bailey  Eq. 

Cas.  (So.  Car.)  149,  209 

Kennebec  Bank  v.  Turner,  2]Green- 

leaf  (Me.)  42,  18 

Kennebec  Bank  v.  Tuckerman,  5 

Greenl.  (Me.)  130,  296,  305 

Kent,   Grafton   Bank  v.    4    New 

Hamp.  221,  17 

Kent  V.  Matthews,  12  Leigh  (Va.) 

573,  205 

Kent  V.  Mercer,  12  Up.  Can.  C.  P. 

R.  30,  458 


Section 
Kenwortby  i".  Schofield,  2  Bam.  & 

Cres.  945,  76 

Kenyon,  Eastwood  v.  11  Ad.  &  Ell. 

438,  9, 58 

Kenyon,   Eastwood  v.   3  Perry  & 

Dav.  276,  58,  77 

Kephart,  Whitcomb  v.  50  Pa.  St. 

85,  43 

Ker,  Slawson  v.  29  La.  An.  295,  444 
Kerr  v.  Baker,  Warker  (Miss.)  140,  17 
Kerr  v.  Cameron,  19  Up.  Can.  Q. 

B.  R.  366,  300 

Kerr  v.  Shaw,  13  Johns.  236,  68 

Ker^iey's  Heirs,  Kerney's  Admr.  v, 

6  Leigh  (Va.)  478,  118 

Kerney's  Admr.  v.  Kerney's  Heirs, 

6  Leigh  (Va.)  478.  118 

Kern,  Eagles  v.  5  Wharton  (Pa.) 

144,  530 

Kerns    v.    Chambers,   3  Ind.    Eq. 

(Nor.  Car.)  576,  238 

Kercheval,  Farmers  &  Mechanics 

Bank  v.  2  Mich.  504,      134,  173,  346 
Kershaw,  Ordinary  v.  1  McCarter, 

(N.  J.)  527,  496 

Kershaw,    Perkins  v.   1   Hill  Eq. 

(So.  Car.)  344,  270 

Kershner,  United  States  v.  1  Bond. 

4:32,  294 

Kesee,  Bradley  v.  5  Cold.  (Tenn.) 

223,  360 

Ketchell  v.  Bums,  24  Wend.  456,  33 
Ketchum,  Williams  v.  19  Wis.  231,  70 
Ketchum    v.    Zeilsdorff",   26    Wis. 

514,  420 

Kettle,  Powell  v.   1  Gilman  (111.) 

491,  118 

Kettlewell,  ConoUy  v.  1  Gill  (Md.) 

260,  62,  64 

Key,  Heath  v.  1  Younge  &  Jer.  434,  296 
Keyes,  Mead  v.  4  E.  D.  Smith  (N. 

Y.)  510,  48 

Keyser  v.  Keen,  17  Pa.  St.  327,  357 
Kibler,  Gilman  v.  5  Humph.  19,  68 
Kibourn,  Martin  v.  1  Central  Law 

Jour.  94,  409 

Kidd,  Brown  v.  34  Miss.  291,  194 

Kidder  v.  Page,  48  New  Hamp. 

380,  217 


TABLE   OF   CASES. 


Ixxxvii 


Section 
Kiersted,  Harwood  v.  20  III.  367,  9 

Killian  v.  Asliley,  24  Ark.   511, 

33,  147,  163 
Kimball   v.  Comstock,    14    Gray, 

608,  59 

Kimball  v.  Newell,  7  Hill,  116,  44,  12b 
Kimball    v.   Roye,    9    Richardson 

Law  (So.  Car.)  295,  87 

Kimball,     Stoddard    v.    6    Cush. 

469,  354 

Kimball,  Stoddard  v.  4  Cush,  604,    354 
Kimble  v.  Cummins,  3  Met.  (Ky.) 

327,  184 

Kincaid,     Burson   v.   3   Penn.    & 

Watts.  (Pa.)  57,  129 

Kincaid  v.  Yates.  63  Mo.  45,  333 

Kinchelse  v.  Holmes,   7  B.  Mon. 

(Ky.)5,  157,  158 

King  V.  Baker,  7  La.  An.  570,  448 

King  V.  Baldwin,  2  Johns.  Ch.  R, 

554,  205, 206 

King  V.  Baldwin,  17  Johns.  384, 

206,  210 
King   V.  Blackmore,    72    Pa.   St. 

347,  288 

King,  Carpenter   v.  9  Met,  511, 

17,  27,  211 
King,  Crawford  v.  54  Ind.  6,  49 

King,   Finley  v.   1  Head  (Tenn.) 

123.  378 

King,  Gardner  v.  2  Ired.  Law  (Nor. 

Car.)  297,  9,  112 

King  V.   Harman's    Heirs,   6  La. 

(Curry.)  607,  283 

King  V.  Nichols,  16  Ohio  St.  80, 

458,  470 
King,  Oldershaw  v.  2  Hurl.  &  Nor. 

517,  70 

King,  Oldershaw  v.  2  Hurl.  &  Nor. 

520,  8 

King  V.  Smith.  2  Leigh  (Va.)  157,    349 
King  V.  State  Bank,  9  Ark.  (4  Eng.) 

185,  296 

Kingham,  Reader  v.   13  Com.  B. 

(J.  Scott)  N.  S.  344,  58 

Kinloch  v.   Brown,    1  Rich.    (So. 

Car.)  223,  64 

Kinloch  v.  Brown,   2  Spears  Law, 

(So.  Car.)  284,  61 


Section 
Kingman,  Grocers'  Bank  v.  16  Gray, 

473,  12,  343 

Kinney,  Hausberger's  Admr.  v.  13 

Gratt.  (Va.)  511,  305 

Kinney,  Smith  v.  6  Neb.  447,  189 

Kimmey,  Fawcetts  v.  33  Ala.  261,  275 
Kingsland,  PfeifFer  v.  25  Mo.  6  J,  6 
Kingsley  v.  Balcombe,  4  Barb.  (N. 

y.)  131,  47,  55 

Kingsley,  Davis  v.  13  Ct.  285,  519 

Kingsley,  Farmers'  &   Mechanics' 

Bank  v.  2  Douglass  (Mich.)  379,  121 
Kingsbury  v.   Westfall,    61   New 

York,  356,  79,  90,  339 

Kingsbury  v.   Williams,  53  Barb. 

(N.  Y.)  142,  339 

Kinsey  v.    McDearman,    5    Cold. 

(Tenn.)  392,  282 

Kingston  Mut.  Ins.  Co.  v.  Clark, 

33  Barb.  (N.  Y.)  196,  1^9 

Kinyon  v.  Brock,  72  Nor.  Car,  554,  85 
Kirby  o.  Duke  of  Marlborough,  2 

Maule  &  Sel.  18,  135,  137 

Kirby  v.  Studebaker,   15  Ind.  45, 

166,  347 
Kirby  v.  Taylor,   Hopkins'  Ch.  R. 

309,  123, 490 

Kirby  17.  Turner,   6  Johns.  Ch.  R. 

242,  123 

Kirby,  Wayne  r.   2    Bailey   Law 

(So.  Car.)  551,  209,  325 

Kirby,  Whitaker  v.  54  Ga.  277,  211 
Kircher,  Knoebcl  v.  33  111.  308,  334 
Kirk,  Grieff  v.  17  La.  An.  25,  393 

Kirk,  Jacob  v.  2  Moody  &   Rob. 

221,  66,  67,  75 

Kirk,  Sacramento  v.  7  Cal.  419,  336 
Kirkham  v.  Marter,  2  Barn  &  Aid 

613,  40 

Kirkman  v.  Bank  of  America,  2 

Cold.  (Tenn.)  397,  214 

Kirkman,  Rice  v.  3  Humph.  (Tenn.) 

415,  515 

Kirkpatrick  v.  Howk,  80  111.  122, 

370,  520 
Kirkpatrick,  Scully  ».  79  Pa.  St. 

324,  423 

Kirkpatrick,   United    States   v.  9 

Wheaton,  720,  474 


Ixxxviii 


TABLE    OF    CASES. 


SECxroN 
Kirkpatrick,  Van  Rensselaer  v,  46 

Barb.  (N.  Y.)  194,  308 

Kitchens,  Smith  v.  51  Ga.  158,  432 
Kiton  V.  Julian,  4  Ellis  &  Black. 

854,  141 

Kittridge,  McComb  v.  14  Ohio,  348,  307 
Kittreclge,  Ulen  v.  7  Mass.  233,  76 

Kittrell,  Gates  v.  7  HeiskeU  (Tenn.) 

606,  84 

Klapp,  Klecknev  v.  2  Watts  &  Serg. 

(Pa.)  44,  115 

Klein  V.  Currier,  14  111,  237,  147,  149 
Klein  v.  Mather,  2  Gilman  (lU.) 

317,  252 

Kleinhaus  v.  Generous,  25  Ohio, 

667,  .  302 

Kleiser  v.  Scott,  6  Dana  (Ky.)  137,  280 
Klingensmith,   Bank  v.   7   Watts 

(Pa.)  523,  206 

Klingensmith's  Exr.  Klingensmith 

V.  31  Pa.  St.  460,  383 

Klepper,  Harsh  v.  28  Ohio  St.  200,  330 
Klose,  Snyder  v.  19  Pa.  St.  235,  352 
Knapp  V.    Anderson,  7  Hun  (N. 

Y.)  295,  409 

Knapp,  Brewer  v.  1  Pick.  332,  90 

Kneeland,  People  v.  31  Cal.  288,  335 
Knepper,  AVright  v.  1  Pa.  St.  361,  379 
Knipfer,  Supervisors  of  Kewannee 

Co.  V.  37  Wis.  496,  476 

Kniffin,  Morris  v.  37  Barb.  (N.  Y.) 

336,  75 

Knight  V.  Crockford,  1  Esp.  190,  75 
Knight  V.  Fox,  Morris  (Iowa)  305,  113 
Knight  V.  Hughes.  Moody  &  Mai. 

247,  247 

Knight,  Knight  v.  16  New  Hamp. 

107,  155 

Knight  V.  Whitehead,  26  Miss.  245,  22 
Knights,  Hohnes  v.  10  New  Hamp. 

175,  46 

Knoebel  v.  Kircher,  33  111.  308,  334 
Knotts,  Bank    v.    10  Richardson 

Law  (So.  Car.)  543,  120,  173 

Knotts  V.   Butler,    10  Richardson 

Eq.  (So.  Car.)  143,  113,259 

Knox,  Abercrombie  v.  3  Ala.  728,  82 
Knox,  Hunt  v.  34  Miss.  655, 

306,  308,  329 


Section 
Knox,  Jones  v.  46  Ala.  53,  126 

Knox,  Melick  v.  44  New  York,  676, 110 
Knox,  Shewell  v.  1  Dev.  Law  (Nor, 

Car.)  404,  157 

Knox  V.  Vallandingham,  13  Smedes 

&  Mar.  (Miss.)  526,  230 

Knox  Co.  Bank  v.  Loyd's  Admr.  18 

Ohio  St.  353,  95 

Kock  V.  Block,  29  Oliio,  St.  565,  185 
Koch  v.  Melhorn,  25  Pa.  St.  89,  '  86 
Koening  v.  Steckel,  58  N.  Y.  475,  288 
Konitzky  ;;.  Meyer,  49  New  York, 

571,  184 

Koontz,  Nabb  v.  17  Md.  283,  74,  128 
Koppel,  Wolff  V.  5  HUl,  458,  57 

Koppel,  Wolff  V.  2  Denio,  368,  57 

Kountz  V.  Hart,  17  Ind.  329,  331 

Krafts  V.  Creighton,  3  Richardson 

Law  (So.  Car.)  273,  186 

Kramer  v.  Farmers'  &  Mechanics' 

Bank.  15  Ohio,  253,  188,  193 

Kramer  &  Rahm's  Appeal,  37  Pa. 

St.  282 

Kramph's  Ex'x  v.  Hatz  Exrs.  52 

Pa.  St.  525,  1,  529 

Kreheval,  Farmers'  &  Mechanics' 

Bank  v.  2  Mich:  504,  313 

Kreider,  Greenawalt  v.  3  Pa.  St. 

264,  207 

Kritzer  v.  xMills,  9  Cal.  21,  17 

Kruttschnitt  v.  Hauck,  6  Nevada, 

163,  464 

Krutz  V.  Stewart,  54  Ind.  178,  68 

Kuhn  V.  Abat,   14  Martin  (La.)  2 

N.  S.  168,  100 

Kuns'  Exr.  v.  Young,  34  Pa.  St. 

60,  128 

Kupfer  V.  Spmhorst,  1  Kansas,  75,  517 
Kuykendall,      Barickman     v.      6 

Blackf.  (Ind.)  21,  66 

Kyle  V.  Proctor,  7  Bush  (Ky.)  493,  339 
Kyle  V.  Bostick,  10  Ala.  589,  309 

Kyner,  Kyner  v.  6  Watts  (Pa.)  221,  266 


Labouchere,  Wythes  v.  3  DeGex  & 
Jones,  593,  19,  365 

Lack,  Thompson  v.  3  Man.  &  Gr. 
&  Scott,  540,  383 


TABLE   OF    CASES. 


Ixxxix 


Section 
Lacock,  Campbell  v.  40  Pa.  St.  44S,  34 
Lacour,  Gosserand  v.  8  La.  An.  75,  303 
Lacy  V.  Lofton,  26  Ind.  324,  153 

Lacy  V.  McNeile,  4  Dow.  &  Ry.  7,      52 
Lacy,   Routon's  Admr.  v.  17  Mo. 

399,  504,  512 

Ladd  V.  Board  of  Trustees,  80  111. 

233,  353 

Ladd  V.  Brewer,  17  Kansas,  204,      417 
Lafarge  v.  Halsey,  1  Bosw.  (N,  T.) 

171,  203 

LaFarge  v.  Herter,  3  Denio,  157,      27 
LaFarge  v.   Herter,   11  Barb.  (N. 

Y.)  159,  27 

Lafayette  Bank,   Lonsdale    v.  18 

Ohio,  126,  96,  167 

Lafonta,  ex 2oarte,2  Robinson  (La.) 

495,  427 

Lagow,  Governor  v.  43  111.  134, 

324,  336 
,    Lahens,  Fielden  v.  6  Blatcbford,  524,  470 
Lahens,  Pickersgill  v.  15  Wallace, 

140,  80,  117 

Lainhart,  BosweU  v.  2  La.  (Miller) 

397,  443 

Laing  v.  Lee,  Spencer,  337,  49,  68 

Laing,  Tucker  v.  2  Kay  &  Johnson, 

745,  212,  296 

Lake  v.  Brutton,  8  De  Gex,  Macn. 

&  Gor.  440,  267 

Lake,  Williams  v.  2  Ell.  &  Ell.  349,   67 
Lakeman,    Mountstephen    v.   Law 

Rep.  7  Q.  B.  196,  42,  63,  64 

Lakeman,    Mountstephen  v.   Law 
■   Rep.  2  Q.  B.  196,  40 

Lalla  Bunseedhur  v.  Bengal  Gov- 
ernment, 14  Moore's  Indian  Ap- 
peals, 86,  463 
Lamb,    Colemard    v.     15    Wend. 

829,  346 

Lamb,  Rolfe  r.  16  Vt.  514,  110 

Lambert,    Eaton  v.    1    Nebraska, 

339,  1S2 

Lamberton  v.  Windom,  IS  Minn. 

506,  334 

Lamkin,  Planters'  Bank  v.  R.  M. 

Charlton  (Ga.)  29,  368 

Lamp  V.  Smith,  56  Ga.  589,  436 

Lampson  v.  ilobart,  28  Vt.  700,         55 


Section 
Lamonte  v.  Ward,  36  Wis.  55S,  424 
Land,  Pickett  v.  2  Bailey  Law  (So. 

Car.)  608,  208 

Lane,  Barrows  v.  5  Vt.  161,  153 

Lane  v.  Burghart,  1  Adol.  &  EU. 

(N.  S.)  933,  48 

Lane,  Davis  v.  10  New  Hamp.  156,   307 
Lane  ex  parte,  1  De  Gex  300,  48 

Lane,  Harrison  v.  5  Leigh  (Va.) 

414,  46:^ 

Lane  v.  Kasey,  1  Met.  (Ky.)  410,        13 
Lane  v.  Levillian,  4  Ark.   (Pike), 

76,  172 

Lane,  Portage  Co.  Branch  JBank  v. 

8  Ohio  St.  405,  333 

Lane,  Robinson  v.  14, Sm.  &  Mar. 

(Miss.)  161,  .  48 

Lane  v.  Sleeper,  18  New  Hamp. 

209,  188 

Lane  v.  State,  27  Ind.  108, 

461, 520,  522 
Landis  v.  Curd,  68  Mo.  104,  218 

Landis,  York  v.  65  Nor.  Car.  585,     195 
Landrum  v.  Brookshire,  1  Stewart, 

(Ala.)  252,  181 

Lang  V:  Brevard,  3  Strob.  Eq.  (So. 

Car.)  59,  389 

Lang,  Brown  v.  4  Ala.  50,  278 

Lang  V.  Pike,  27  Ohio  St.  498,   79,  393 
Lang,  Treasurers  v.  Bailey  Law  (So. 

Car.)  430,  144 

Langford,   Hindman  v.  3  Strobh, 

(So.  Car.)  207,  51 

Langford,    Wilson  v.   5    Humph. 

(Tenn.)  320,  309 

Langford's  Exr.  v.  Perrin,  5  Leigh 

(Va.)  552,  228 

Langdon,  Holloman  v.  1  Jones  Law 

(Nor.  Cor.)  49,  .       460 

Langdon  v.  Markle,  48  Mo.  357,      208 
Lancaster,   Vance  v.   3  Haywood 

(Tenn.)  130,  183 

Langan  v.  Hewett,   13  Smedes  & 

Marsh.  122,  10 

Lansdale  v.   Cox,    7  ,T.   B.   Mon. 

(Ky.)  401,  220 

Langiey  v.  Adams,  40  Me.  125         435 
Langley,  Clements  v.  2  Nevile  & 

Man.  269,  "        240 


xc 


TABLE   OF   CASES. 


Section 
Lansen  v.  Paxton,  22  Up.  Can .  C. 

P.  R.  505,  225 

Lanussee  v.  Barker,   3  Wheaton, 

101,  114 

Lapham  v.  Barrett,  1  Vt.  247,  70 

Lapham,  Chapia  v.  20  Pick.  467, 

41,44 
Laqueer,  Prosser  v.  4  Hill  (N.  Y.) 

420.  115 

Laraway,  West  v.  28  Mich.  464,  4 

Larehar,  Bailey  v.  5  Rhode  Is.  5-30,  78 
La  Roque,  Russell  v.  13  Ala.  149,  285 
La  Roque,  Russell  ».  11  Ala.  352, 

120,  191 
Larson  v.  Wyman,  14  Wend.  246, 

62,  64 
Lartigue  i\-Baldwin,  5  Martin  (La.) 

0.  S.  193,  524 

Lasher   v.   Williamson,    55    New 

York,  619.  203 

Latham  v.  Brown,  16  Iowa,  118,  481 
Latham  v.  Fagan,  6  Jones   Law 

(Nor.  Car.)  62,  459 

Latouche  v.  Pallas,  Hayes  (Irish.) 

450,  264 

Lathrop  v.  Masterson,  44  Texas, 

527,  359 

Lathrop,  Meyer  v.  10  Hun  (N.  Y.) 

66,  24 

Lathrop,    Walker     v.    6     Iowa, 

(Clarke,)  516,  199 

Lattimore,  Brown  v.  17  Cal.  93,  460 
Lauman  v.  Nichols,  15  Iowa,  151,  19 
Laurason  v.  Mason,  3  Cranch,  492,  67 
Laurens,   Street  v.   5  Richardson 

Eq.  (So.  Car.)  227,  464 

Laurenson    v.  State,   7  Harr.    & 

Johns.  (Md.)  339,  445 

Laugrhlin  v,  Ferguson,  6  Dana  (Ky.) 

Ill,  405 

Laub  V.  Rudd,  37  Iowa,  617,  94 

Laval  V.  Rowley,  17  Ind.  36,  272 

Law,  Barry  v.  1  Cranch  (C.  C.)  77,  75 
Ijaw,  Brigirs  v.  4  Johns.  Ch.  22,  352 
Law  V.  East  India  Co.  4  Vesey. 

824.  79,  371 

Lawrie  v.  Scholefield,  Law  Rep.  4 

Com.  PI.  622,  133 

Lawson,  Fairlee  v.  5  Cowen,  424,       93 


Section 
Lawson,  Hughes  v.  31  Ark.  613,  49 
Lawson  v.  Wright,  1  Cox,  275,  254 
Lawton  v.  Maner,  9  Rich.  Law  (So. 

Car.)  335,  157,  175 

Lawton  v.  Maner,   10  Richardson 

Law  (So.  Car.). 823,  134,315 

Lawrence  v.  McCalmont,  2  How. 

(U.  S.)  426,  6,  78 

Lawrence,  Middlesex  Manf.  Co.  v. 

1  Allen,  339,  143 

Lawrence  v.  Taylor,  5  Hill,  107,  76 
Lawrence  v.  Walmsley,  12  J.  Scott 

(N.  S.)  799,  315,  3.50 

Lay,  Devinney  v.  19  Mo.  646,  503 

Laythoai-p  v.  Bryant,  2  Bing.  (N. 

C.)  755,  75 

Lazarus,  Gomez  v.  1  Dev.  Eq.  (Nor. 

Car.)  205,  280 

Lea,  Dozier  r.  7  Humph.  (Tenn.) 

520,  18 

Leadley  v.  Evans,  9  Moore,  102,  140 
Leary  v.   Cheshire,   3  Jones    Eq. 

(Nor.  Car.)  170,  233 

Leaker.  Ferguson,  2  Gratt.  (Va.) 

419,  268 

Lean,  Dodge  v.  13  Johns.  .508,  67 

Leavanworth,  Estate  of,  Michigan 

State  Bank  v.  28  Vt.  209,  114 

Leavitt,  Bank  of  Steubenville  v.  5 

Ohio,  208,  325 

Leavitt,  Lyon  v.  3  Ala.  430,  363 

Leavitt  v.  Savage,  16  Me.  72,  327 

Le  Baron,  United  States  v.  19  How- 
ard (U.  S.)  73,  450 
Lebanon  Nat.  Bank,  Graves  v.  10 

Bush  (Ky.)  23,  367 

Lecat  V.  Tavel  3  McCord,  158,  68,  73 
Le  Cerf,  State  v.  1  Bailey  Law  (So. 

Car.)  410,  426 

Leckie  v.  Scott,  10  La.  (5  Curry)  412,  11 
Ledbetter,  BuUard  v.  5  The  Re- 
porter (Sup.  Ct.  Ga.)  231,  211 
Ledbetter  r.  Torney,  11  Iredell  Law 

(Nor.  Car.)  294,  178 

Ledoux  V.  Durrive,  10  La.  An.  7,  232 
Ledoux,  Louisiana  State   Bank  v. 

3  La.  An.  674,  146,  208,  369 

Ledyard,   Ohio  Life  Ins.   Co.  v.  8 

Ala.  866,  283 


TABLE   OF   CASES. 


XCl 


Section 
Ledyard,  Saint  v.  14  Ala.  244,  277 

Lee  V.  Baldwin,  10  Ga.  208,  384 

Lee  V.  Clarke,  1  Hill  (N.  Y.)  56, 

29,  106,  524 
Lee  r.  Dick.  10  Peters,  482,  157,  159 
Lee  V.  Dozier,  10  Humph.  (Tenn.) 

447,  317 

Lee,  Felch  v.  15  Wis.  265,  292 

Lee  V.  Fontaine,  10  Ala.  755,  49 

Lee  V.  Griffin,  31  Miss.  632,  275 

Lee  V.  Highland  Bank,  2  Sandf. 

Ch.  R.  311,  361 

Lee  V.  Jones,  14  J.  Scott  (N.  S.) 

386,  367 

Lee  V.  Jones,  17  J.  Scott  (N.  S.) 

482,  367 

Lee,  Laing  v.  Spencer,  337,  68 

Lee,  McDaniel  v.  37  Mo.  204.  243 

Lee,  New  London  Bank  v.  11  Ct. 

112,  218,  282 

Lee,  Raikes  r.  3  Man.  &  Gr.  452,  68 
Lee  V.  Rook,  Moseley,  318,  205 

Lee  V.  Sewall,  2  La.  An.  940,  317 

Lee,  Laing  v.  Spencer  (N.  J.)  337,  49 
Lee  V.  State,  2  Kelly  (Ga.)  137,  432 
Lee,  Sweet  v.  3  Man.  &  Gr.  452,  75 
Lee,  Tapp  v.  3  Bos.  &  Pul.  367,  59 
Leech  v.  Hill,  4  Watts  (Pa.)  448, 

147,  153,  173 
Leeds  r.  Dunn,  10  New  York,  469,  103 
Leek,  Parker  v.  1  Stew.  (Ala.)  523,  179 
Leeman,  O'Donnell  r.  43  Me.  158,  66 
Lees  r.  "Whitcomb,  5  Bing.  34,  71 

Leet,  People  v.  13  111.  261,  269 

Leffingwell  v.  Freyer,  21  Wis.  392, 

21,  117 
Leggett  V.   Humphreys,  21  How. 

(U.  S.)  66.  93 

Leggitt,  Magee  v.  48  Miss.  139,  266 
Leibshultz,  Scheid  v.  51  Ind.  38.  15 
Leigh  V.  Taylor,   7  Bam.  &  Cress. 

491,  451 

Leigh t,   Fletcher  v.  4  Bush  (Ky.) 

303,  357 

Leitner,  Aycock  v.  29  Ga.  197,  437 

Leland,   Bank  v.  5    Met.    (Mass.) 

259,  376 

Leland  r.  Creyon,    1  McCord  (So. 

Car.)  100,  61,  64 


Section 
Leland,  Wood  v.  1  Met.  (Mass.) 

387,  259 

Lemayne  v.  Stanley,   1  Freeman, 

5.38,  75 

Lemayne  v.  Stanley,  3  Levinz,  1,       75 
Lemmon  v.  Box,  20  Tex.  329,  56 

Lenox  v.  Prout,  3  Wheaton,  520,     382 
Lenwell,  Mendenhall  v.  5  Blackf. 

(Tnd.)  125.  319 

Leonard,   Cory  v.  56  New  York, 

494,  281 

Leonard,  Lumsden  t'.  55  Ga.  374, 

378,  391 
Leonard  v.  Mason,  1  "Wend.  522,  53 
Leonard,  Pryor  v.  57  Ga.  136,  109 

Leonard    v.    Speidel,    104   Mass. 

356,  407 

Leonard  v.  Sweetzer,  16  Ohio,  1,      115 
Leonard  v.  Vredenburgh,  8  Johns. 

29,  6,  7,  9,  55,  68 

Leper,  Williams  v.  2  Wils.  308;  Id. 

3  Burr.  1886,  49,  50,  51,  54 

Lerned  v.  Wannemacher,  9  Allen, 

412,  66,  75 

Lesher,    Palethorpe   v.    2   Rawle 

(Pa.)  272,  425 

Leslie,  SiU  v.  16  Ind.  236,  149,  153 

Letcher,  Jones  v.  13  B.  Mon.  (Ky.) 

563,  229 

Letcher's  Admr.  v  Yantis,  3  Dana 

(Ky.)  160,  512 

Leuning,  Ratcliff  v.  30  Ind.  ^89,    120 
Levering,  Rittenhouse  v.  6  Watts 

&  Serg.  (Pa  )  190.  267,  276 

Levi  V.  Mendell,  1  Duvall  (Ky.)  77, 

35,  147,  153,  170 
Levillian,  Lane  v.  4  Ark.   (Pike) 

76,  176 

Levy  Court,  Ellicott  v.   1   Harr.  & 

Johns.  (Md.)  359,  447 

Levy  V.  Hampton,  1  McCord  Law 

(So.  Car.)  145,  18 

Levy,  Hampton  v.  1  McCord  Eq. 

(So.  Car.)  107.  389 

Levy  V.  Merrill,  4  Greenl.  180,  68 

Levy  V.  Taylor,  24,  Md.  282,  415 

Levy  V.  Wise,  15  La.  An.  38,      11,  536 
Lewellyn,  Smeidel  v.  3  Phila.  (Pa.) 

70,  86 


XCll 


TABLE   OF    CASES. 


Section 
Lewis  r.  Armstrong.  47  Ga.  280,  395 
Lewis,  Beehervaise  v.  Law  Rep.  7 

Com.  PI.  372,  203 

Lewis  V.  Brackem-idgc,  1  Blackf. 

(Intl.)  112,  434 

Lewis  c.  Bradley,  2  Ired.  Law  (Nor. 

Car.)  303,  160 

Lewis  V.  Brewster,  2  McLean,  21, 

172,  174 
Lewis,  Cake  v.  8  Pa.  St.  493,  189 

Lewis,  Dozier  r.  27  Miss.  679  261 

Lewis  V.  Dwight.  10  Ct.  95,  93,  132 
Lewis,  Gage  v.  68  111.  604,  171,  351 
Lewis,  Gilman  v.  15  Me.  452,  89 

Lewis  ?'.  Harbin,  5  B.  Men.  (Ky.) 

564,  296 

Lewis  v.  Hoblitzell,  6  Gill  &  Johns. 

(Md.)  259,  84 

Lewis  V.  Jones,  4  Bam.  &  Cress. 

506,  122 

Lewis,  Maingay   r.  Irisli   Rep.  3 

Com.  Law,  495,  315 

Lewis,  Maingay  v.   Irish  Rep.   5 

Com.  Law,  229,  315,  316 

Lewis,  Mersereau  v.  25  Wend.  243,  58 
Lewis,  Oxford  Bank  v.  8  Pick.  458,  305 
Lewis  v.   Palmer,  28  New  York, 

271,  275 

Lewis,  Ramsey  v.  30  Barb.  (N.  Y.) 

403,  -  235 

Lewis  V.  Riggs,  9  Texas,  164,  503 

Lewis,  State  v.  73  Nor.  Car.  138, 

29,  478 
Lewis  V.  State,  41  Miss.  686,  429 

Lewis,  Way  v.  115  Mass.  26,  526 

Lewis,  Wheeler  v.  11  Vt.  265,  84,  85 
Libenguth,  Moser  v.  2  Rawle  (Pa.) 

428,  118 

Lichenthaler  v.  Thompson,  13  Serg. 

&  Rawle  (Pa.)  157,  206 

Lichten  v.  Mott,  10  Ga.  138,  437 

Liddard,  Stead  v.  1  Bingham,  196,  73 
Liddard,  Stead  v.  8  Moore,  2,  70 

Liddordale  v.  Robinson,  2  Brocken- 

broiigh,  159,  269 

Liebbrandt  v.  Myron  Lodge,  61  lU. 

81,  295 

Likens,  Mcintosh  v.  25  Iowa  155,  92 
Lill,  Stadtf.  9  East,  348,  70 


Section 
Lilley  v.  Hewdtt,  11  Price,  494,  77 

Lilly,  Olcott  V.  4  Johns.  407,  42S 

Lilly  V.  Roberts,  58  Ga.  363,  375,  380 
LilHman,  National  Exchange  Bank 

V.  65  New  York,  475,  275 

Lime  Rock  Bank  v.  Mallett,  34  Me. 

547;  Id.  42  Me.  .349, 

17.  119,  299,  304,  305,  312 
Linn,  United  States  v.  2  McLean, 

501,  294 

Lincoln,  Merritt  v.  21  Barb.  249,  206 
Linenschraidt,  Peters  v.   58.  Mo. 

464,  507 

Lining  v.  Giles'  Exrs.  3  Brevard 

(So.  Car.)  530,  494 

Linnell,  Miles  v.  97  Mass.  298,  6 

Linthome,  Rayner  v.  2  Car.  &  Pa. 

124,  76 

Linnenfelser,    Stagg   v.    59    Mo. 

336,  147 

Linscott,  Thompson  v.   2  Gi-eenl. 

(Me.)  186,  198 

Linn  County  v.  FaiTis,  52  Mo.  75,  358 
Linn  v.  McClelland,  4  Devoreux  & 

Batt.  Law  (Nor.  Car.)  458,  257 

Liversidge  v.  Broadbent,  4  Hurl.  & 

Nor.  603,  52 

Livingston  Bank  of  New  York   v. 

2  Johns.  Cas.  409,  86 

Livingston  v.  Van  Rensselaer,    6 

Wend.  63,  233 

Lindsay,  Gull  v.  4  Wels.  Hurl.  & 

Gor.  45,  48 

Lindsay  v.  Parkinson,  5  Irish  Law 

Rep.  124,  337 

Linton,  Dwight  v.  3  Robinson  (La.) 

57,    '  153,  352 

Linton,  Yongue  v.   6   Rich.    Law 

(So.  Car.)  275,  219 

Lipscomb  v.  Grace,  26  Ark.  231,  189 
Lipscomb  v.  Postell,  38  Miss.  476,  496 
Liquidators  of  Overend,  Gurney  & 

Co.    r.    Liquidators  of  Oriental 

Financial  Corporation,  Law  Rep. 

7  Eng.  &  Irish  Appl.  Cas.  348,        19 
Little,    Cobb    v.   2    Greenl.   (Me.) 

261,  86 

Little,  Cummings  v.  45  Me.  183, 

17,  20,  115,  370 


TABLE   OF    CASES. 


xcni 


Section 
Little,  Hayes  v.  52  Ga.  555,  388 

Little  V.  Little,  LS  Pick.  426,  191 

Littler.  Nabb,  10  Mo.  3,  68 

Little  V.  Commonwealth,  48  Pa.  St. 

337,  108 

Litler  v.  Horsey,  2  Ohio,  209.  515 

Littlefield,     Hughes    v.     11     Me. 

400,  107 

Littlefield,  State  v.  4  Blackf.  (Ind.) 

129,  480 

Lloyd.   Bullock  v.   2  Car.  and  P. 

119,  46 

Lloyd,  Montefiore  v.  15  J.  Scott, 

(N.  S.)  203,  98 

Lloyd,  North  British  Ins.  Co.  v.  10 

Wels.  Hurl.  &  Gor.  523,  365 

Lloyd,  Wilson  v.  Law  Rep.  16,  Eq. 

Cas.  60,  23,  329 

Lobb    V.   Stanley,    5    Queen's  -B. 

574.  75 

Lochrane  v.  Solomon,  -38  Ga.  2S6,  385 
Lockett,  Drew  v.  32  Beavan,  499,  276 
Locknane  v.  Emmerson,  11  Bush 

(Ky.)  69,  331 

Lockridge  v.  Upton,  24  Mo.  184,  504 
Lockwood,  Thompson  v.  15  Johns. 

256,  434 

Lock  V.  Reid,  6  Up.  Can.  Q.  B.  R. 

(0.  S.)  295,  74 

Locke  V.  McVean,  33  Mich.  473,  103 
Locke,  Trefethen  v.  16  La.  An.  19,  175 
Lodge,  Heard  v.  20  Pick.  53,  532 

Loew  V.  Stocker,  68  Pa.  St.  226,  127 
Loftin,  Jordin  v.  13  Ala.  547,  319 

Lofton,  Lacy  v.  26  Ind.  324,  153 

Logan,    Adams  v.  27  Gratt.  (Va.l 

201,        ■  319,  375,  380 

Logan,  Gregorys.  7  Blackf.  112,  68 
Loh  V.  Judge  of  Wayne  Circuit,  26 

Mich.  186,  514 

Lombard  v.  Cobb,  14  Me.  222,  255 

Lomme  v.  Sweeney,  1  Montana,  584, 420 
Longden,  Anderson  v.  1  Wheaton 

85,  459 

Loney,  Perley  v.  17  Up.  Can.  Q.  B. 

R.  279,  17 

Longley  v.  Griggs,  10  Pick.  121,  225 
Longpre  v.  White,  6  La.  (Curry) 

388,  502 


Section 
London  Assurance  Co.  v.  Bold,  6 

Adol.  &  Ell.  (N.  S.)  514,  98 

London  Dock  Co.,   Calvert   v.    2 

Keen,  638,  345 

Lonsdale  v.  Brown,  4  Wash.  148,  8 
Lonsdale  v.  Lafayette    Bank,    IS 

Ohio,  120,  96,  167 

Long,   Hassell  v.  2  Maule  &  Sel. 

363,  139 

Long,  James  v.  68  Nor.  Car.  218,  124 
Long,  Morgan  v.  29  Iowa,  434,  453 
Long,  Owen  v.  112  Mass.  403,  3 

Long,  State  v.  8  Iredell  Law  (Nor. 

Car.)  415,  483 

Long   V.   United    States  Bank,    1 

Freeman's  Ch.  R.  (Miss.)  375,      405 
Looney  v.  Hughes,   26  New  York, 

514,  474 

Loomer  v.  Wheelwright,    3  San- 
ford's  Ch.  R.  1.35,  22 
Loomis  V.  Newhall,  15  Pick.  159, 

43,  49 
Loop  V.   Summers,  3  Rand  (Va.) 


511, 


;70 


Loosemore  v.  Radford,  9  Mees.  & 

Wels.  657,  190 

Lord  Harberton  v.  Bennett,  Beatty 

(Ir.  Ch.)  386,  21,  373 

Lord,  Bulkeley  v.  2  Starkie,  406,  107 
Lord  Bolton  v.  Tomlin,  5  Adol.  & 

Ell.  856.  38 

Lord    Arlington    v.    Merricke,    2 

Saunders,  403,  138 

Lord  V.  Staples,    23  New  Hamp. 

448,  •  181 

Loring,  Moore  v.  106  Mass.  455,  410 
Lorhig,  Fuller  v.  42  Me.  481,  288 

Loring,  Soliier  v.  6  Cush.  537,  329 

Lossee  v.  Williams,  6  Lans,  228,  9 

Lotbrop  V.   Southworth,   5   Mich. 

436,  534 

Lott,  Burroughs  v.  19  Cal.  125,  252 
Loucks,   Saltenberry  v.   8  La.  An. 

95,  451 

Loud,  Shaw  v.  12  Mass.  447,  184 

Lougee^  National  Pemberton  Bank 

V.  108  Mass.  371,  149 

Loughridge  v.  Bowland,   52  Miss. 

546,  177 


XCIV 


TABLE   OF   CASES. 


Section 
Louisville  C.  &  L.  R.  R.  Co..  Pol- 
lard V.  7  Bush  (Ky.)  597,  518 
Louisville  Manf.  Co.  v.  Welch,  10 

How.  (U.  S.)  461,  103,  173,  174 

Louisiana  State  Bank  v.  Orleans 

Navigation  Co.  3  La.  An.  294  3 

Louisiana  State  Bank  v.  Lrdoiix,  3 

La.  An.  674,  146,  208,  369 

Love,  City  of  Keokuk  v.  31  Iowa, 

119,  261,  266,  278 

Love's  Case,  1  Salk.  28,  50,  51,  58 
Lovell,  Bellows  v.  5  Pick.  307,  381 
LoveU,  Smith  v.  2  Montana.  332,  480 
Loveland  v.  Shepard,   2  Hill  (N, 

Y.)  1.39,  84 

Lovett  V.  Adams,  3  Wend.  380,  3-50 
Lovejoy,  Shriver  v.  32  Cal.  574,  17 

Low  V.  Anderson,  41  loa.  476,  4 

Low,  Marsh  v.  55  Ind.  271,  1.j6 

Low    V.    Smart,    5    New   Hanip. 

353,  233 

Low,  Stafford  v.  16  Johns.  67,  162 

Low,  Stafford  v.  20  111.  152,  434 

Lowe  V.  Beckwith,   14  B.    Mon. 

(Ky.)  150,  131,  163,  168 

Lowe,  Jackson  v.  1  Bing.  9,  66 

Lowell,  Chase  v.  7  Gray  33,  66 

Lowing,  Greenlee  v.  35  Mich.  63,  420 
Lowndes  v.    Chisholm,  2   McCord 

Eq.  (So.  Car.)  455,  263 

Lowndes,  Duncan  v.  3  Camp.  478,  10 
Lowndes  v.  Pinckney,  1  liichard- 

son's  Eq.  (So.  Car.)  155,  2.32 

Lowndes  v.  Pickney,  2  Strob.  Eq. 

(So.  Car.)  44,    •  215 

Lowndes,  Reade  v.  23  Beaven,  361,  26 
Lowther,  Farwell  v.  18  111.  252,  67 

Lowry  V.  Adams,  22  Vt.  160, 

96,  17-1,  175 
Lowry  v.   Lumbermen's   Bank,  2 

Watts  and  Serg.  (Pa.)  210,  178 

Lowry  v.   McKinney,  68  Pa.  St. 

294,  21 

Loyd's  Admr.  Knox  Co.  Bank  v. 

18  Ohio  St.  353,  95 

Loyd  V.  McTeer,  33  Ga.  37,  434 

Lucas,  Barclay  v.  3  Douglass,  321,  101 
Lucas,  Barclay  v.  1  Durn.  &  Ea.st 

291  note,  101 


Sectio.v 
Luca,g  v.  Chamberlain,  8  B.  Mon. 

(Ky.)  276,  _         46 

Lucas  V.  Curry's    Exrs.  2  Bailey 

Law  (So.  Car.)  403,  496 

Lucas,  Farmers'  &  Traders'  Bank 

r.  26  Ohio  St.  .385,  296,  354 

Lucas  V.  Governor,  6  Ala.  826,  5-30 

Lucas  V.  Guy,  2  Bailey  Law  (So. 

Car.)  403,  257 

Lucas  V.  Payne,  7  Cal.  92,  49 

Ludewig,  Warfield  v.  9  Robinson 

(La.)  240,  •  296 

Lucking's    Admr.    v.    Gegg,     12 

Bush  (Ky.)  298,  185 

Ludington,  Gillilan  v.  6  West  Va. 

128,  505,  508 

Ludlow  V.  Simond,  2  Caines'  Cas. 

in  Error,  1,  79,  345 

Ludwick  V.  Watson,  3  Oreg.  256,        9 
Lukens,  Hitchcock  v.  8  Por.  (Ala.) 

333,  49 

Lumbermen's    Bank,  Lowry   v.  2 

Watts  &  Serg.  (Pa.)  210,  178 

Lumpkin  r.  Mills,  4  Ga.  .343,  273 

Lumsden  v.  Leonard,  55  Ga.  374, 

378,  391 
Luqueer  v.  Prosser,  1  Hill  (N.  Y.) 

256,  150 

Leroux  v.  Brown,  12  Com.  B  801,     .  38 
Luse,  Case  v.  28  Iowa,  527,  87 

Lutch,    Wybrants    v.    24    Texas, 

309,  322 

Lydall,   Bard  well    v.  5  Moore  & 

Payne,  327,  286 

Lydall,  Bardwell  v.  7  Bing.  489,      286 
Lyde  V.  Barnard,   Tyrvvh.   &  6r. 

250,  S9 

Lyie,  Robinson  v.  10  Barb.  (N.  Y.) 

512,  226 

Lyman,  Horner  v.  4  Keyos  (N.  Y.) 

237.  397 

Lyman,  Horner  »;.  2  Abb.  Rep.  Om. 

Cas.  399,  397 

Lyman,     Mallory    v.    3    Pinney, 

(Wis.)  44.3,  170 

Lyman  v.  Sherwood,  20  Vt.  42,  94 

Lynch  v.  Colegate,  2  Ilarr.  &  Johns. 

(Md)34,  350 

Lyndon  v.  Miller,  .30  Vt.  329.  445 


TABLE   OF   CASES. 


xcv 


Section 
Lyon  r.  Boiling.  9  Ala.  463,  270 

Lyon,  Hotchkiss  v.  2  Blackf.  (Ind.) 

222,  518 

Lyon  r.  Leavitt,  3  Ala,  430,  363 

Lyon,  Strong  r.  63  New  York,  172,  345 
Lyons  v.  Miller,  6  Gratt.  (Ya.)  427,  16 
Lyons,  Young  v.  8  Gill  (Md.)  162, 

252,  255,  256 
Lysaght   r.    "Walker,    2    Dow    & 

Clark,  211,  70,  521 

Lysaght  f.  Walker,    5  Bligh  (N. 

R.)  1.  70,72,287,521 

Lyths'  Ex'rs.  v.  Pope's  adm'r,  11 
B.  Men.  (Ky.)  297,  251 


M.  &  M.  Bank  r.  Evans,  9  West 

Va.  373,  296,  833 

Mabbett,  J^tna  Life  Ins.  Co.  v.  18 

Wis.  667,  367 

Macon  &  Brunswick  R.   R.  Co., 

Branch  r.  2  Woods.  385,  282 

Macdonald  v.  Bell,  3  Moore's  Priv, 

Co.  Cas.  315,  392 

Macdonald.   Bonar  v.  3  House  of 

Lords  Cases,  226,  342 

Macdougal,    Inglis    r.    1    Moore, 

196,  126 

Macoy  r.  Childress,  2  Tenn.  Ch.  R. 

(Cooper)  438,  47,  77 

Mace,  Wells  r.  17  Vt.  503.  189 

Mackrell,   Holmes  v.  3  Comb.  B. 

(N.  S.)  789,  75 

Mackenzie  r.  Scott,   6  Bro.  Pari, 

Cas.  280,  67 

Mackay  v.  Dodge,  5  Ala.  388,  99 

Maclean  v.  Dunn,  4  Bing.  722,  76 

MacLean,  Gray  r.  17  111.  404,  405 

Macumb,  Campbell  r.  4  Johns.  Ch. 

R.  534,  192 

Macrory  r.  Scott,  5  Wels.  Hurl.  &: 

Gor.  907,  54,  56 

Madden,  Rose  v.  1  Kansas,  445, 

17.  517 
Maddox,   McDougald   v.    32    Ga. 

63.  465 

Madigan,  Gunn  v.  28  Wis.  158,  89 

Magee  v.  Leggett,  48  Miss.  139,       2G6 
Maggs  r.  Ames,  4  Bing.  470,  48 


Sectiox 
Magill,  Bank  of  U.  8.  r.  1  Paine, 

661,  344 

Magness,  Reynolds  r.  2  Iredell  Law 

(Nor.  Car.)  26,  441 

Magruder,  Aud  r,  10  Cal.  282,    17, 148 
Mahon,  State  v.  3  Harrington  (Del.) 

568,  427 

Mahaffy,  Fink  c.   8  Watts  (Pa.) 

384,  267 

Mahmin  v.  Pearson,  8  New  Hamp. 

539,  211 

Main,  Boice  r.  4  Denio,  55,  487 

Mariner's  Bank  v.  Abbott,  28  Me. 

280,  305 

Mains  v.  Haight,  14  Barb.  (N.  Y.) 

76,  82,  85 

Maingay  v.  Lewis,   Irish  Rep.  3 

Com.  Law,  495,  315 

Maingay  v.  Lewis,   Irish  Rep.   5 

Com.  Law.  229,  315, 316 

Mallet  V.  Bat<?man,  Law  Rep.  1  C. 

P.  163;  S.  C.  16,  J.  Scott,  N.  S. 

530,  60,  61 

Mallett,  Lime  Rock  Bank  r.  34  Me. 

347;  Id.  42  Me.  349, 

17,  119,  299,  304,  305,  312 
Mailing  Union  v.  Graham,   Law 

Rep.  5  Com.  PL  201,  343 

Mallory  r.  Gillett,  23  Barb.  (N. 

Y.)610,  50 

Mallory  r.  Lyman,  3  Pinney  (Wis.) 

443,  '  170 

Mallory  r.  Gillett,  21  New  York, 

412,  45 

Malone,  David  r.  48  Ala.  42S,  296 

Malone,  Stewart  r.  5  Phila.  440,        58 
Manchester    Iron    Manf.    Co.    v. 

Sweeting,  10  Wend.  163,  206 

Mandlee,  Trickett  r.  Sid.  4^,  8 

Mandigo    r.   Mandigo,    26    Mich. 

349,  188 

Mauer,  Lawton  v.  9  Rich.  Law  (So. 

Car.)  3:35,  157,  175 

Mauer,  Lawton  v.  10  Rich.  Law, 

(So.  Car.)  323,  134,315 

Manhattan  Gas  Light  Co.  t'.  Ely, 

39Barb.  (N.  Y.)n4,  98 

Manhaska    County    v.    Ruan,    45 

Iowa,  328,  478 


XCVl 


TABLE    OF    CASES. 


Section 
I^Ianley,  Simpson  v.  2  Crompton 

&  Jer.  12,  364 

Manley,  Simpson  v.  2  Tyrew.  80,  364 
Manly  v.  City  Atchison,  9  Kansas, 

358,  476 

Mannon,  Anderson  r.  7  B.  Mon. 

(Ky.)  217,  309 

Manning,  Bell  v.  11  Grant's  Ch.  R. 

142,  123 

Manning,  Horton  v.  37  Texas,  23,  147 
Manning  v.  Mills,  12  Up.  Can.  Q. 

B.  R.  515,  96 

Mann  v.  Blanchard,  2  Allen,  386,  59 
Mann,  Dye  v.  10  Micli.  291,  179 

Mann    v.      Eckford's     Exrs.       15 

Wend.  502,  170 

Mann,  Massie  v.  17  Iowa,  131,  265 
Mann,  State  v.  21  Wis.  684,  484 

Mann,  Thomas  v.  28  Pa.  St.  520,  207 
Maim,  Witherly  v.  11  Johns.  518,  181 
Mann,  Wells  v.  45  New  York,  827,  9 
Mann  v.  Yazoo  City,  31  Miss.  574,  522 
Mapes  V.  Sidney,  Cro.  Jac.  683,  8 

Manrow  v.  Durham,  3  Hill,  584,  74 
Manrow,  Durham  v.  2  New  York, 

O.j-j,  Oo 

Manser,   Hill  v.    11   Gratt.   (Va.) 

552,  270 

IManufacturing  Co.  v.  Worster,  45 

New  Hamp.  110,  526 

Manufacturers'  &  Mechanics'  Bank 

V.    Bank    of    Pennsylvania,     7 

Watts  &  Serg.  335,  27 

Manufacturers'   Bank   v.  Billings, 

17  Pick.  87,  295 

Manufacturers'   Bank  v.  Cole,  33 

Me.  188,  95 

Marberger  r.  Pott,  16  Pa.  St.  9,  154 
Marbury,   Somei-ville  v.  7  Gill  & 

Johns.  (Md.)  275,  381 

March  v.  Putney,  56  New  Hamp. 

34,  170,  173 

Marcy  v.  Crawford,  16  Conn.  549,  46 
Marden,  Anstey  v.   1  Bos.  &  Pul. 

N.  R.  124,  51 

Marden,   Thornburgh  r.  33  Iowa, 

380,  211 

Marchant,  Hawes  v.  1  Cur.  136,  5 

Margaritz,  Ilinely  r.  3  Pa.  St.  428,      3 


Section 
Markle,  Langdon,  v.  48  Mo.  357.  208 
Markell  v.  Eichelberger,  12  Md.  78, 

188.  193 
Marks,  Sterns  r.  35  Barb.  (N.  Y.) 

565,  98 

Marks'  Sureties,  United  States  v.  3 

Wallace,  Jr.  358,  516 

Mariners'  Bank  v.  Abbott,  28  Me. 

280,  17 

Marine    Bank,    Ingraham    v.    13 

Mass.  208.  468 

Marion  v.  Faxon,  20  Conn.  486,  60 
Marrett,  Andrews  v.  58  Me.  539,  316 
Marshall  v.  Aiken,  25  Vt.  328,  27 

Marshall,   Executors  of  Baker  v. 

16  Vt.  522,  381 

Marshall,   McNairy  v.   7  Humph. 

(Tenn.)  229,  476 

Marshall,  Williams    v.  42    Barb. 

(N.  Y.)  524,  9,  127 

Marshall,  Wilson  v.  15  Irish  Com. 

Law  Rep.  466,  65 

Marsh,  Baxter  v.  1  Yerg.  (Tenn.) 

460,  515 

Marsh  v.  Consolidation  Bank,  48 

Pa.  St.  510,  17,  46 

Marsh,  Day,  18  Pick.  321,  106 

Marsh,  Forward  v.  18  Ala.  645,  483 
Marsh,  French  v.  29  Wis.  649,  82 

Marsh  v.  Griffin,  42  Iowa,  403,  331 

Marsh  v.  Low,  55  Ind.  271,  156 

Marsh,  Pace  v.  1  Bing.  216,  70 

Marsh,  Pace  v.  8  Moore,  59,  70 

Marsh  v.  Pike,    10  Paige  Ch.  R, 

595,  262 

Marsh  v.  Pike,  1  Sandford's  Ch.  R. 

210,  24 

Marsh,   Sandilands  v.   2  Bam.  & 

Aid.  673,  10 

Marston,  Richmond  v.  15  Ind.  134,  260 
Marston  v.  Sweet,  66  New  York, 

207,  77 

Martel,  Deuil  v.  10  La.  An.  643,  300 
Martel,  State  v.  3  Robinson  (La.) 

22,  432 

Martz,  Morin  r.  13  Minn.  191,  58,  75 
Martien,  Morgan  v.  32  Mo.  438,  320 
Marliraant,  Toussaint  v.  2  Dum. 

&  East,  100,  176 


TABLE   OF   CASES. 


XCVU 


Section 
Marter,  Kirkham  v.  2  Barn.  &  Aid. 

613,  40 

Martin,  Bibb  v.  14  Smedes  &  Mar. 

(Miss.)  87,  284 

Martin  v.  Black's  Exrs.   20  Ala. 

309,  47 

Martin,  Brisendine  v.  1  Ired.  Law, 

(Nor.  Car.)  286,  249 

Martin,  Brockett  v.  11  Kansas,  378,  481 
Martin,  Boutte  v.   16  La.  (Curry) 

133,  208 

Martin  v.   Boyd,    11  New  Hamp. 

385,  151 

Martin,  Cooper  v.  1  Dana  (Ky.)  23,  233 
Martin  v.  England,  5  Yerg.  (Tenn.) 

313,  60 

Martin,    Farris    v.     10     Humph. 

(Tenn.)  495,  75 

Martin,  Garr  v.  20  New  York,  306,  217 
Martin,  Gibson  v.  7  Humpli.  (Tenn.) 

415,  515 

Martin,  Good  v.  17  Am.  Law  Reg. 

Ill,  151,  152,  153 

Martin,  Gordon  v.  Fitzgibbon,  302,  63 
Martin  v.  Hazard  Powder  Co.  2  Col- 
orado, 596,  70 
Martin,  Howes  v.  1  Esp.  162,  46,  54 
Martin,    Jarratt  v.   70  Nor.   Car. 

459,  121 

Martin  v.  Kibourn,  1  Central  Law 

Jour.  94,  409 

Martin  v.  Mechanics'  Bank,  6  Harr. 

&  Johns.  (Md.)  235,  376 

Martin,  McArthur  v.  23  Minn.  74,  260 
Martin    v.    Mitchell,    2    Jacob  & 

Walk.  413,  75 

Martin,  Nowland  v.  1  Iredell  Law 

(Nor.  Car.)  307,  249 

Martin,  Overturf  v.  2  Ind.  (2  Car- 
ter) 507,  505,  511 
Martin,  Patterson  v.  7  Ohio,  225,  188 
Martin  v.  Pope,  6  Ala.  532,  286 
Martin,  Sample  v.  46  Ind.  226,  154 
Martin,  Smith  v.  4  Des.  Eq.  (So. 

Car.)  148,  117 

Martin  v.  Shekan,  2  Colorado,  614,  206 
Martin,  Tapley  v.  116  Mass.  275,  367 
Martin    v.   Taylor,  8  Bush   (Ky.) 

384,  378 

Q 


Section 
Martin  v.  Thomas,  24  How.  (U.  S.) 

^15,  335 

Martin,  WUliams  v.  2  Duvall  (Ky.) 

491,  318 

Martin,  Wilson  v.  74  Pa.  St.  159.  74 
Martin  v.  Wright,  6  Adol.  &  Ell. 

(N.  S.)  919,  131 

Marwin,  Bradford  Admr.  v.  2  Fla. 

463,  276 

Marvin,   Henderson  v.    31    Barb. 

(N.  Y.)  297,  103 

Marwin,  Morrison  v.  6  Ala.  797.  272 
Maryatts  v.  White,  2  Starkie,  101,  287 
Mascall,  Walton  v.   13    Mees.    & 

Wels.  452,  170 

Mascall,   Walton  v.   13  Mees.  & 

Wels.  72,  172 

Maser  v.   Strickland,    17   Serg.  & 

Rawle  (Pa.)  354,  530 

Massie  v.  Mann,  17  Iowa,  131,  265 
Mason,  Chichester  r.  7  Leigh  (Va.) 

244,  388 

Mason  v.  Dousay,  35  111.  424,  53 

Mason,  Hanmer  v.  24  Ala.  480,  492 
Mason,  Heralson  v.  53  Mo.  211,  84 
Mason,  Howe  v.  12  Iowa,  202,  480 

Mason,  Laurason  v.  3  Cranch,  492,  67 
Mason,  Leonard  v.  1  Wend.  522,  53 
Mason,    McWilliams    v.   31    New 

York,  294,  95 

Mason  v.  Nichols,  22  AVis.  376,  121 
Mason  v.  Pritchard,  12  East,  227, 

Mason  v.  Richards,  12  Iowa,  73,  417 
Mason,  United  States  v.  2  Bond, 

183,  444 

Masterson,  Lathrop  v.   44  Texas, 

527,  359 

Mateer,  Driskell  v.  31  Mo.  325,  212 
Mather,  Klein  v.  2  Gilraan  (111.) 

317,  252 

Mather  v.  People,  12  111.  9,  428 

Mather.  Rand  v.  11  Cush.  1,  38 

Matthewson  v.  Strafford  Bank,  45 

New  Hamp.  104,  306 

Matthis.  Powell  v.   4    Ired.    Law 

(Nor.  Car.)  83,  252,  255 

Matheson  v.  Jones,  30  Ga.  306, 

17,  352 


XCVlll 


TABLE   OF   CASES. 


Section 
Mathews  r.  Aikon,    1   New  York, 

595,  260 

Mathews  v.  Chrisman,  12  Smedes 

&  Mar.  (Miss.)  595,  164,  165 

Mathews.  Houghton  v.  3  Bos.  & 

Pul.  485,  57 

Mathews,  Kelly  v.  5  Ark.   (Pike) 

2-2.;,  505 

Matthews,  Kent  v.  12  Leigh  (Va.) 

573,  205 

Mathews,   Railton  v.  10  Clark  & 

Finnelly,  934,  365 

Mathews,  Ritenour  v .  42  Ind.  7,  194 
Mathews  v.  Switzler,  46  Mo.  301,  286 
Matson,  Bank  of  Missouri  v.  24 

Mo.  333,  381 

Matson,  Bank  of  Missouri  v.   26 

Mo.  243,  19 

Matson,  Gedye  v.  25  Beavan,  310,  266 
Matson,   Admr.    State  v.  44  Mo. 

305,  383 

Matson  v.  Wharam,  2  Term  R.  80, 

01,  62,  63,  64 
Mattcson,  Constant  v.  22  111.  546,  285 
Matthews,   Fulton  v.    15    Johns. 

433,  296 

Mauldlin  r.  Branch  Bank  at  Mo- 
bile, 2  Ala.  502,  10 
Mauley,  Simpson  v.  2  Cro.  &  Jer. 

12,  1.34 

Maule  V.  Bucnoll,  50  Pa.  St.  39,  55 
Mauiisell,  Jephson  v.  10  Irish  Eq. 

Rep.  38,  389 

Maunsell,  Jephson  v.  10  Irish  Eq. 

Rep.  132,  389 

Mauri  V.  Heffernan,  13  Johns.  58,  176 
Maurice,  United  States  v.  2  Brock. 

96,  445 

Maxcey,  Robertson  v.  6  Dana(Ky.) 

101,  249 

Maxwell  v.  Connor,  1  Hill  Eq.  (So. 

Car.)  14,  209 

Maxwell,   Fen-ell  v.   28  Ohio    St. 

383,  46 

Maxwell  v.  Hnynes,  41  Me.  559,  52 
Maxwell  V.  Salts,  4  Cold.  (Tenn.) 

293,  422 

Maxwell,  Weed  Sewing  Machine 

Co.  V.  63  Mo.  486,  128 


Section 
May  V.  Robertson,  13  Ala.  86,  363 

May  V.  Vann,  15  Fla.  553,  259 

Mayberryt).  Bainton,  2Harangton 

(Del.)  24,  10,169 

Mayer  of  Dartmouth  v.  Silly,  7  Ell. 

&  Black.  97,  471 

Mayer,  Heidenheimer  v.  10  Jones 

&  Spen.  (N.  Y.)  506,  107 

Mayer  v.  Isaac,  6  Mees.  &  Wels. 

605,  78, 134 

Mayers,  Quine  v.  2  Robinson  (La.) 

510,  408 

Mayfield,  Perkins  v.  5  Port.  (Ala.) 

182,  188 

Maj  field,  Wheeler  v.  31  Texas,  395,  96 
Mayfield  v.  Wheeler,  37  Texas  256, 

96,  157,  161 
Mayhew  v.  Boyd,  5  Md.  102,  345 

Mayhew  v.  Crickett,  2  Swanston, 

185,  ~  378,  380 

Mayhew  v.  Crickett,  2  Swanston, 

193,  221 

Maynard,  Blow  v.  2  Leigh  (Va.) 

29,  182 

Maynai'd,  Winnesheik  v.  44  Iowa, 

15,  478 

Mayo,  Eaton  v.  118  Mass.  141,  87 

Mayo  V.  Hutchinson,  57  Me.  546,         4 
Mayor  v.  Blache,  6  La.  (CuiTy)  500, 

369,  476 
Mayor  of  Berwick  v.  Oswald,  1  Ell. 

&  Black.  2.i5,  471 

Mayor  ot  Berwick,  Oswald  v.  House 

of  Lords  Cas.  856,  144 

]\Iayor  of  Berwick  v.   Oswald,   3 

Ell.  &  Black.  65.3,  471 

Mayor  of  Bimiingham  v.  Wright, 

16  Ad.  &  Ell.  N.  S.  623,  145 

Mayor,  Boaler  r.    19  J.  Scott  (N. 

S.)  76,  329 

Mayor  of   Cambridge  v.   Dennis, 

Ell.  Black.  &  Ell.  G60,  141 

Mayor,    etc.     of    Wilmington    v. 

Hom,  2  Har.  (Del.)  190,  139 

Mayor  and  City  Council  of  Natchi- 
toches V.   Redmond,  28  La.  An. 

274,  93. 474 

Mayor  and  Selectmen  of  Homer  v. 

Merritt,  27  La.  An.  568,        445,  474 


TABLE   OF    CASES. 


XCIX 


Section 
Mayor  of  New  York  v.  Sibberns,  3 

Abbot's  Rep.  Om.  Cas.  266,  469' 

Mayrant,  Commissioners  v.  2  Bre- 
vard (So.  Car.)  228,  487 
McAfee,  Click  v.  7  Port.  (Ala.)  62,     48 
McAllister,  Ecker  v.  45  Md.  290,        77 
McAllister,  Sibley  v.  8  New  Hamp. 

389,  392 

McArthur    v.    Martin,   2-3    Minn. 

74,  260 

M'Broom  v.    Governor,    4    Port. 

90,  525 

M'Broom  v.  Governor,  6  Port.  (Ala.) 

32,  392 

McBroom  v.  SommervUle,  2  Stew. 

(Ala.)  515,  415 

M'Conico,  Hopkirk  v.  1  Brocken- 

brough,  220,  313,  315 

M'Caraher  v.    Commonweal tli,    5 

Watts.  &  Serg.  (Pa.)  21,  443 

McCabe  v.  Raney,  32  Ind.  309,         359 
McCarter  v.  Turner,  49  Ga.  309,         17 
McCalmont,  Lawrence  v.  2  How- 
■  ard  (U.  S.)  426,  6,  78 

McCallister,   Hamblin  v.   4  Busli 

(Ky.)  418,  508 

McCauley,  Hutchins  v.  2  Dev.  & 

Bat.  Eq.  (Nor.  Car.)  399,  249 

McCauley  v.  OflPutt,  12    B.  Mon. 

(Ky.)386,  421 

McCauley,  Tinker  v.  3  Mich.  188,  35 
McCarter  v.  Turner,  49  Ga.  309,  507 
McCarty  v.    Gordon,  4  Wharton 

(Pa.)  321,  216 

McCarty,  Gordon    v.   3  Wharton 

(Pa.)  407,  216 

McCarty  v.  Roots,  21  Howard  (U. 

S.)  432,  225 

McCaffil  r.  RadclifF,   3  Robertson, 

(N.  Y.)  44"),  63 

McCasland,  Gibbons  v.   1  Barn.  & 

Aid.  690,  65 

McCann,  Miller  v.  7  Paige  Ch.  R. 

451,  296 

McCann  v.  Dennett,  13  New  Hamp. 

528,  295 

McChesney,  Corbin  r.  26  111.  231,  49 
McChord,  Bank  of  Com.  v.  4  Dana 

fKy.)  191,  331 


Section 
McClung,  Union  Bank  t'.  9  Humph. 

(Tenn.)  98,  304,  305 

McClung's  Exr.  Taylor  v,  2  Hous- 
ton (Del.)  24,  97,  157 
McClanahan,    Byers  v.   6  Gill  & 

Johns.  250,  46,  2-'9,  256 

McClelland,  Greenough  v.  2  Ell.  & 

EU.  424,  17,  328 

McClelland,  Linn  v.  4  Devereux  & 

Batt.  Law  (Nor.  Car.)  458,  257 

McClure,  Barker  t).  2  Blackf.  (Ind.) 

14,  321,  325 

McClure  v.  Commonwealth,  SO  Pa. 

St.  167,  493 

McClure's    Admr.    Rodgers    v.   4 

Gratt.  (Va.)  81,  268 

McClure  v.  Smith,  56  Ga.  439,  439 

McClurg  V.  Fryer,  15  Pa.  St.  293,  84 
McCleary,  Mitchell  v.  42  Md.  374,  164 
McClaughry,  McNaught  v.  42  New 

York,  22,  7 

McCowan,  Conwell  c.  53  111.  363,  275 
McConnell  v.  Brillhart,  17  111.  354, 

75,-76 
McConnell,  Eraser  v.  23  Ga.  368,  17,  25 
McConnell,  Hunt».  1  T.  B.  Monroe 

(Ky.)  219,  10-5 

McConnell  v.  Scott,  15  Ohio,  401,  204 
McCormack,  State  tJ.  50  Mo.  568,  464 
McCormack's  Admr.  v.  Obannon's 

Exr.  3Munf.  (Va.)484,  254 

McCormick  v.  Bay  City,  23  Mich. 

457,  356 

McCormick,  EUis  v.  1  Hilton  (N. 

Y.)  313,  339 

McCormick's  Admr.  v.   Irwin,  35 

Pa.  St.  Ill,  260 

McCormick  v.  Moss,  41  111.  352,  458 
McComb  V.   Kittridge,    14    Ohio, 

348,  307 

McComb  V.  Wright,  4  Johns.  Ch. 

6e59,  76 

McCollum  V.  Gushing,  22  Ark.  540 

157,  158,  169 
McCollum  V.  Hinkley,  9  Vt.  143,  206 
McCord  V.  Johnson,  4  Bibb  (Ky.) 

531,  514 

McCreary  v.  Van  Hook,   35  Tex. 

63],  9 


TABLE    OF   CASES. 


Section 
McCrea,  Corporation  of  Chatham  v. 

12  Up.  Can.  C.  P.  R.  352,  84 

McCrea  v.  Purmont,  16  Wend.  460,    75 
McCramer  v.  Thompson,  21  Iowa, 

244,  333 

McCrary  v.  Coley,  Georgia  Decis- 
ions, 104,  27 
McCracken  v.  Todd,  1  Kansas,  148, 

442,  444 
McCurdy,  Hickman  v.  7  J.  J.  Mar. 

(Ky.)  555,  250 

McCue  V.  Smith,  9  Minn.  252,  38 

McCuUough,  Harger  v.  2  Denio, 

119,  26 

McCuUough,  Moss  v.  7  Barb.  (N. 

Y.)  279,  26 

McCuUough,  Moss  v.  5  Hill   (N. 

Y.)  131,  524 

jilcCune  V.  Belt,  45  Mo.  174,     225,  233 
McCunn,   Darlington  v.   2  E.  D. 

Smith  (N.  Y.)  411,  62 

McDade,  Bank  of  Alabama,  v.  4 

Port.  (Ala.)  452,  188 

McDaniel  v.  Lee,  37  Mo.  204,  243 

McDeannon,   Kinsey   v.    5    Cold. 

(Tenn.)  392,  282 

McDonald  v.   Bradshaw,   2  Kelly 

(Ga.)  248,  458 

McDonald,     Brown    v.    8    Yerg. 

(Tenn.)  158,  °    244 

McDonald.   Chase  v.  7    Hanis  & 

Johns.  (Md.)  160,  79 

McDonald    v.  Felt,    49  Cal.  354, 

410,  423 
McDonald,  Gray  v.  19  Wis.  213,  231 
McDonald,     Independent     School 

District  of  Montezuma  v.  39  Iowa, 

564,  466 

M'Doal  V.  Yeomans,  8  Watts  (Pa.) 

361,  83 

McDougal  V.  Calef,  34  New  Hamp. 

534,  110 

McDougald  v.  Dougherty,  14  Ga. 

674,  271 

McDougald  v.  Maddox,  32  Ga.  63,   465 
McDowell  V.  Bank,  1  Harrington, 

(Del.)  369,  27,  376 

McDowell  V.  Bank  of  Wilmington 
.&  Brandywine,  2  Del.  Ch.  R.  1,    296 


Section 
McDowell  V.  Chambers,  1  Strobh. 

Eq.  (So.  Car.)  347,  66 

McDowell  V.  Crook,  10  La.  An.  31,  191 
McDowell,  Meade  v  5  Binney  (Pa.) 

195,  120,  520 

McDowell,  Mims  v.  4  Ga.  182,  181,  185 
McDowell,  Nichols  v.  14  B.  Mon. 

(Ky.)  5,  208 

McElvain,  Treasurer  of,   Franklin 

Co.  V.  5  Ohio,  200,  494 

McEwen,  Philbrooks    v.   29  Ind. 

347,  389 

McEachron,    Inhabitants  of  New 

Providence  v.   4  Vroom  (N.  J.) 

3.J9,  477 

McFadden,  Burt  v.  58  111.  479,  347 
McFarlane,    Chalaron'   v.    5    La. 

(Curry)  227,  356 

McFarlane,  Shaw  v.  1  Ired.  Law 

(Nor.  Car.)  216,  370 

McFaul,  Bank  of  Montreal  v.  17 

Grant's  Ch.  R.  234,  123 

McGee,    Albertson    v.     7     Yerg. 

(Tenn.)  106,  396 

McGee,  Coger's  Exrs.  v.   2  Bibb 

(Ky.)  321,  352 

McGee  v.  Metcalf,  12  Smedes    & 

Mar.  (Miss.)  535,  298,  388 

McGehee  v.  Gewin,   25  Ala.  176, 

483,  487,  489 
McGehee  v.  McGehee,  12  Ala.  83,  228 
McGehee  v.  Scott,  15  Ga.  74,  492 

McGill  V.  Bank  of  U.  S.  12  Whea-   ' 

ton,  511,  344 

McGinnis,  Davis  Sewing  Machine 

Co.  V.  45  Iowa,  538,  100 

McGovem,  Dobyns  v.  15  Mo.  662,  493 
McGovern  v.  Hoesback,  53  Pa.  St. 

176,  103 

McGovem,  McLaughlin  i'.  34  Barb. 

(N.  Y.)208,  127 

McGovney  v.  State,  20  Ohio,  93,  112 
McGruder,  Johnson  v.  15  Mo.  365,  76 
McGregory,  Fiske  v.  34  New  Hamp. 

414,  58 

McGrew,  Chapman  v.  20  111.  101,  336 
McGrew  v.  Governor,  19  Ala.  89,  480 
McGrew  v.   Tombeckbee  Bank,  5 

Port.  Ala.  547,  209 


TABLE   OF   CASES. 


CI 


Section 
McGuire  v.  Bry,  3  Robinson  (La.) 

196,  314,  447,  473 

McGuire,  Fennell  v.  21  Up.    Can. 

C.  P.  R.  134,  113,  131 

McGuire  v.  Woodbridge,  6  Robin- 
son (La.)  47,  312 
McHatton,  People  v.  3  Gilman  (111.) 

638,  324 

McHatton,    People    v.    2    Gilman 

(111.)  731,  469 

McHaney  v.  Crab  tee,  6  T,  B.  Men. 

(Ky.)  104,  378 

McHeniy,  Hall  v.   19  Iowa,   521, 

332,  333 
Mcintosh  V.  Likens,  25  Iowa,  155,  92 
Mclver  v.  Richardson,  1  Maule  & 

Sel.  557,  162 

McKay,  Walker  v.  2  Met.  (Ky.) 

294,  195 

McKamey,  England    v.    4    Sneed 

(Tenn.)  75,  505 

McKee    v.    Amonett,    6    La.   An. 

207,  272 

McKee  v.  Campbell,  27  Mich.  497,  187 
McKee,  Coats  v.  26  Ind.  223,  22,  345 
McKee,  Gates,  v.   13   New  York, 

232,  133 

McKenzie  r.  Jackson,  4  Ala.  230,  49 
McKenzie,  Stroop  v.  38  Tex.  132,  17 
McKecknie  v.  Ward,  58  New  York, 

541,  322 

McKensie  v.  Farrell,   4  Bosw.  (N. 

Y.)  192,  68 

McKenne  v.  George,  2  Richardson 

Eq.  (So.  Car.)  15,    239,  247,  252,  348 
McKenny's  Exrs.  v.  Waller,  1  Leigh 

(Va.)434,  382 

McKnight  v.  Bradley,  10  Rich.  Eq. 

(So.  Car.)  557.  193 

McKnight,    Bright     v.     1    Sneed 

(Tenn.)  158,  165 

McKinney,   Lowiy  v.   68  Pa.   St. 

294,  21 

McKinney,    Sublett  v.   19  Texas, 

438,  199 

McKinney   r.   Whitney,  8  Allen, 

207,  59 

McKinnell,   Wakefield    v,    9    La. 

(Curry)  449,  428 


Section 
McKoy,  Camden  v.  3  Scam.  (111.) 

437,  147 

McLaren  v.   Hutchinson,   22  Cal. 

187,  49,  52 

McLaughlin  v.  McGovern,  84  Barb. 

(N.Y.)208,  127 

McLaren    v.    Watson's    Exrs.    26 

Wend.  425,  33 

McLane  r.  Ragsdale,  31  Miss.  701,  199 
McLendon,  Newsom  v.  6  Ga.  392,  280 
McLean,    Darling  v.  20  Up.  Can. 

Q.  B.  R.  372,  316 

McLean,  Holt  v.  75  Nor.  Car.  347,  142 
McLean  v.  Towle,  3  Sandf.  Ch.  R. 

117,  275 

McLean,  Stevenson  u.  11  Up.  Can. 

C.  P.  R.  208,  97 

McLemore  v.  Powell,  12  Wheaton, 

554,  296 

McLemore,  Read  v.  34  Miss.  110,  349 
McLeod,  Files  v.  14  Ala.  611,  54 

McLeod,  Smith  v.  3  Ired.  Eq.  (Nor. 

Car.)  390,  261 

McLewis  v.  Furgerson,  5  The  Re- 
porter, 330,  233 
McLott  V.  Savery,  11  Iowa,  323,       115 
McLosky,  Rives  r.  5  Stew.  &  Port. 

(Ala.)  330,  214 

McLure  v.  Cloclough,  17  Ala.  89,  363 
McMahan,  McWhorterr.  10  Paige, 

386,  76 

McMaster,  Smarr  v.  35  Mo.  349,  323 
McMicken  v.  Commonwealth,   58 

Pa.  St.  213,  439 

McMillan,  Adams  v.  7  Port.  (Ala.) 
.  73,  66,  7S 

McMillan  v.  Bull's  Head  Bank,  32 

Ind.  11,  1,  166 

McMillan  v.  Dana,  18  Cal.  339,  408 
McMillan,  Firemen's  Ins.  Co.  v.  29 

Ala.  147,  340,  524 

McMillan  v.  ParkeU,  64  Mo.  286,        28 
McMullin  V.  Bank  of  Penn  Town- 
ship, 2  Pa.  St.  343,  189 
McMullen   v.    Hinkle,    39    Miss. 

142,  372 

McMullen,  Riley  v.  6  Gray,  500,  38 
McMullin,  Shannon    v.   25  Gratt. 

(Va.)  211,  373 


Cll 


TABLE   OF   CASES. 


Section 
McMurray  r.  Spiccr,  Law  R.  5  Eq. 

,V27,  67 

ilcMurtry,  Crump,  v.  8  Mo.  408,  26.J 
BleXair,   Cumpston    r.    1   Wend. 

457,  82 

McNairy  v.  Bell,  5  Robinson  (La.) 

418,  ^28 

McNairy  r.   Marshall,   7  Humph. 

(Tenn.)  229,  47G 

McNaughtv.  McClaughry,  42  New 

York,  22,  7 

McNeale  v.    Governor,    3    Gratt. 

(Ya.)  299,  519 

McNeU,  Cai-dell  v.  21  New  York, 

336,  53 

McNeil,  Dunlap  v.  35  Ind.  316,  115 
McNeil  V.  Sanford  3  B.  Mon.  (Ky.) 

11,  223 

McNeile,  Lacy  v.  4  Dow.  &  Ry.  7,  52 
MuNeese,   Jenkins    v.    34    Texas, 

189,  378 

McNier,    Freudenstein   v.  81   lU. 

208,  487 

McNutt    r.    Wilcox,    3    Howard, 

(Miss.)  417,  4C6 

McNutt  V.  Wilcox,    1   Freeman's 
•  Ch.  R.  (Mii^s.)  116,  27 

McPherson,  Dickson  v.  3  Grant's 

Ch.  Appl.  R.  185,  361 

McPherson  v.  Meek,  30  Mo.  .345,  180 
McPherson  v.  Talbott,   10  Gill  & 

Johns.  (Md.)  499,  231 

McQuesten     v.     Noyes,     G    New 

Harap.  19,  25,  295 

McQuewans  v.  Hamlin,  35  Pa.  St. 

517,  10 

McRae,  Daniel  v.  2  Hawks  (Nor. 

Car.)  590,  225 

MiSpedon,  Therasson  r.  2  Hilton 

(N.  Y.)  1,  51 

McTecr,  Loyd  v.  33  Ga.  37,  434 

McVain,  Place  v.  38  New  York,  96,  317 
McVean,  Locke  r.  33  Mich.  473,  103 
McVeigh  v.  The  Bank  of  the  Old 

Dominion,  26  Gratt.  (Va.)  785,     .381 
McYicar  v.  Royce.  17  Up.  Can.  Q. 

B. R.  529,  181 

McVicker,   Caldwell's  Exrs.   v.  9 

Ark.  (4  Eng.)  418,  296 


Section 
McWhann,  Burrows  v.  1  Desaussure 

Eq.  (So.  Car,)  409,  269 

McWhorter  v,  McMahan,  10  Paige, 

386,  7G 

McWliorter  v.  Wright,  5  Ga.  555,  203 
McWilliams    v.   Mason,   31    New 

York,  294,  95 

Meacham,  Fox  v.  6  Nebraska,  5-30,  480 
Mead  r.  Keyes,  4  E.  D.  Smith  (N. 

Y.)  510,  48 

Mead  v.  Merrill,  33  New  Hamp. 

437,  201 

Mead  V.  Merrill,  30  New  Hamp. 

472,  201 

Meade  v.  McDowell,  5  Binney  (Pa.) 

195,  120,  520 

Meadows,   Heffield  v.  Law  Rep.  4 

Com.  PI.  595,  130,  134 

Mealing,   Steele  v.   24  Ala.    285, 

233,  234,  236, 388 
Mears  v.  Commonwealth,  8  Waits 

(Pa.)  223,  442 

Mears,  Whiton  v.  11  Met.  (Mass.) 

563,  148,  168 

Mease  v.  Wagner,  1  McCord  (So. 

Car.)  395,  44 

Mebane,  Freeman  v.  2  Jones  Eq. 

(Nor.  Car.)  44,  280 

Mechanics  Fire  Ins.  Co.  v.  Ogden, 

1  Wend.  137,  169 

Mechanics'  Nat.  Bk.   of  Chicago, 

Gage  V.  79  111.  62,  170,  208 

Mechanics'   Bank  v.   Hazard,    13 

Johns.  35.3,  271 

Mechanics'    Bank,    Martin,    v.   6 

Harr.  &  Johns.  (Md.)  235,  376 

Mechanics'   Bank    v.   Wright,  53 

Mo.  153,  17 

Mecorney     v.    Stanley,     8    Cush. 

(Mass.)  85,  8 

Medley,   Brandon  v.  1  Jones,  Eq. 

(Nor.  Car.)  313,  235 

Medlin     v.     Commonwealth,     11 

Bush  (Ky.)  605,  431 

Meek,  McPherson  v.  30  Mo.  345,  180 
Meeker,  Emmons  v.  55  Ind.  321,  333 
Meighan,  Grundy  v.   7  Irish  Law 

Rep.  519,  122 

Meigs,  Waterman  v.  4  Cush.  497,      67 


TABLE   OF   CASES. 


cm 


Section 
Meiswinkle  v.  Jung,  20  Wis.  361,  310 
Melhorn,  Koch  v.  25  Pa.  St.  89,  86 

Melick,  Bogue  v.  25  111.  91,  149 

Melick  V.   Knox,   44    New  York, 

676,  110 

Melendy    v.    Capen,     120    Mass. 

222,  132 

Mellendy  v.  Austin,  69  111.  15,  291 

Mellcn    V.    Nickerson,    12    Gray, 

445,  364 

Melton,  Middleton  v.  10  Bam  & 

Cres.  317,  523 

Melton,    Middleton,  v.   5  Man.   & 

Ryl.  2G4,  523 

Melville  V.  Doidge,  6  Man.  Gr.  & 

Scott,  450,  479 

Melville  v.   Hayden,  3    Barn.    & 

Aid. 593,  •  137 

Menard  v.  Davidson,  3  La.    An. 

480,     '  341 

Menard  v.  Scudder,  7  La.  An.  385, 

113,  131,  157,  158,  175 
Mendenhall  v.  Lenwell,  5  Blackf. 

(Ind.)  125,  319 

Mendelson  v.   Stout,   5    Jones    & 

Spen!  (N.  y.)  408,  348 

Mendell,  Levi  r.  1  Duvall  (Ky.)  77, 

35,  147,  153,  170 
Menifee  v.  Clark.  35  Ind.  304,  298 

Mennard,  Gibbs  v.  6  Paige  Ch.  R. 

258,  194 

Mercien  v.  Andrus,  10  Wend.  461,     50 
Merchants'  Bank  v.  Corderville,  4 

Robinson  (La.)  508,  386 

Merchants'  Bank  v.  Rudolf,  5  Ne- 
braska, 527,  218 
Mercer,  Alexander  i\  7  Ga.  549,        465 
Mercer  County  Court,  Bonta  v.  7 

Bush  (Ky.)  576,  474 

Mercer  County  v.  Coovert,  6  Watts 

&  Serg.  (Pa.)  70,  102 

Mercer,  Kent  v.  12  Up.  Can.  C.  P. 

R.  30,  458 

Merle  v.  Wells,  2  Camp.  413,  134 

Merriken  v.  Godwin,  2  Delaware 

Ch.  R.  236,  26 

Merricke,  Lord  Arlington  v.  2  Saun- 
ders, 403,  138 
Merrill,  Chapin  v.  4  Wend.  657,         46 


Section 
Merrill,    Gray    v.   11    Bush  (Ky.) 

633,  421 

Merrill,  Levy  v.  4  Greenl.  180,  68 

Merrill,  Mead  v.  30  New  Hamp. 

472,  201 

Merrill,  Mead  v.  33  New  Hamp. 

437,  201 

Merrill,  Skillin  v.  16  Mass.  40,  241 

Merritt,  Agnew  v.   10  Minn.  308, 

22,  328 
Merritt,  Canada  West,  etc.  Ins.  Co. 

V.  20  Up.  Can.  Q.  B.  R.  444,  111 

Merritt  v.  Clason,   12  Johns.  102, 

75,  76 
Men-itt  v.  Lincoln,  21  Barb.  249,  206 
Merritt,  Mayor    of   Selectmen    of 

Homer  v.  27  La.  An.  568,      445,  474 
Merriam,    Clark    v.    25    Ct.    576, 

147,  148,  153,  170 
Merriam    v.    Rockwood,   47   New 

Hamp.  81,  354 

Merrimack  County  Bank  v.  Brown, 

12  New  Hamp.  320,        286,  290,  300 
IVIerryman  v.   State,  5  Harris    & 

Johns.  (Md.)  423,  270 

Merserseau  v.   Lewis,    25  Wend. 

243,  58 

Mesner,  Coster  v.  58  Mo.  549,  305 

Messer  v.  Swan,    4   New  Hamp. 

481,  237 

Messinger,  Boston  Hat  Manufactory 

V.  2  Pick.  223,  342 

Metcalf,   McGee  v.  12  Smedes  & 

Mar.  (Miss.)  535,  208,  388 

Metcalfe    Co.   Ct.   Newman  v.   4 

Bush  (Ky.)  (i7,  466 

Metzner  v.  Baldwin,  11  Minn.  450,     18 
Mettler,  State  Bank  at  Brunswick 

V.  2  Bosw.  (N.Y.)  392,  49 

Meugy,  SoUee  v.  1  Bailey  Law  (So. 

Car.)  620,  97,  120,  136,  157 

Meyer,  Farwell  v.  35  111.  40,  323 

Meyer  r.  Hartraan,  72  111.  442,     49,  52 
Meyer,  Konitzky  v.  49  New  York, 

571,  184 

Meyer  v.  Lathrop,   10    Hun    (N. 

Y.)66,  24 

Michigan  State  Bank  v.  Estate  of 

Leavenworth,  28  Vt.  209,  114 


CIV 


TABLE   OF   CASES. 


Section 
Miehifran  State  Bank  v.  Pecks,  28 

Vt.  -J^jO,  97 

Mickey,  Seymour  v.  15  Ohio  St. 

515.  148,    153 

MicUlIeton,  Crosby  v.  Finch's  Pre- 
cedents, 309.  118 
MidiUeton  r.  First  Natl.  Bank  of 

Marshaltown,  40  Iowa,  29,  421 

MitMleton,   Copis    v.  1  Turner  & 

Russ,  2-24,  273 

Mirldleton,  Copis  v.  2  Turner  & 

Russ,  224.  275 

Miililleton.  Hobbs  v.  1  J.J.  Marsh, 

(Ky.)  17G,  494,  496,  532 

Middleton  r.  Melton,  10  Barn.  & 

Cress.  317,  523 

Mid.lleton  r.  Melton.   5  Man.  & 

Ryl.  261,  523 

Middleton,  Shields  v.  2  Cranch.  C. 

C.  205,  •       53 

Mi.ldl.'field  r.  Gould,   10  Up.  Can. 

C.  P.  R.  9,  523 

Middi.'sex  Manf.  Co.  v.  Lawrence, 

1  Allen,  .339,  143 

Mieure,  Judah  v.  5  Blackf.   (Ind.) 

171,  254,  257 

Mikelj,  Da\-is  v.  1  Freeman,  Ch.  R. 

(Miss.)  548,  17,  27,  378 

Milam,  Ragrland  v.  10  Ala.  618,  231 
Miles  1-.  Bacon,  4  J.  J.  Marsh.  (Ky.) 

^•''7.  182 

Miles  r.  Linnell,  97  Mass.  298,  6 

Miles,  New  Haven  Bank  v.  5  Ct. 

587,  435 

Miles,  Roberts  v.  12  Mich.  297,  211 
Miles,  Standleyr.  36  Miss.  434,  '  7 
Milforcf,  Fuller  v.  2  McLean,  74,  296 
Mellish  V.  Green,  5  Grant's  Ch.  R. 

655,  378 

Milliken,  Blatchford  v.  35  III.  4-34,  148 
Mills  i:  Gould,  14  Ind.  278,  319 

Mills,  Johnston  v.  25  Texas,  704,  84 
Mills,  Johnson  v.  10  Gushing,  503,  295 
Mills,  Kritzer  v.  9  Cal.  21,  17 

Mills,  Lumpkin  v.  4  Ga.  343,  273 

Mills.  Manning  v.  12  Up.  Can.  Q 

B.  R.  515,  95 

Mills.  Taylor  v.  Cowper,  525,  189 

Mills,  Trask  v.  7  Cush.  552,  m 


Section 
Mills,  Vankoughnet  v.  5  Grant's 

Ch.  R.  653,  325 

Mills  r.  Watson,  1  Sweeney  (N.  Y.) 

374,  24 

Mills,  Winckworth  v.  2  Esp.  484,  46 
Millett  V.  Parker,  2  Met.  (Ky.)  608,  354 
Miller  v.  Aldrich,  31  Mich.  408,  218 
Miller  v.  Bagwell,  3  McCord,  Law 

(So.  Car.)  429,  32 

Miller  v.  Berkey,  27  Pa.  St.  317,  388 
Miller  v.  Commonwealth,  8  Pa.  St. 

4-44,  450 

Miller's  Admr.  Commonwealth  v. 

8  Serg.  &  Rawle,  452,  27,  378 

Mille.'    V.    Childress,    2    Humph. 

(Tenn.)  320,  511 

Miller  v.  Cook,  23  New  York,  495,  70 
Miller  v.  County  of  Macoupin,   2 

Oilman  (111.)  50,  463 

Miller,  Denson  v.  33  Ga.  275,  504 

Miller  v.  Dyer,  1  Duvall  (Ky.)  263, 

379,  382 
Miller,  ex  parte,  1  Yerger  (Tenn.) 

435,  398 

Miller  v.  Finley,  26  Mich.  249,  332 
Miller,  Frisch  r.  5  Pa.  St.  310,  343 

Miller  v.  Gaskins,  1  Smedes  &  Mar. 

C:h.  R.  (Miss.)  524,  125 

Miller  v.  Gaston,  2  Hill  (N.  Y.) 

188,  150 
Miller  v.  Gilleland,  19  Pa.  St.  119,  331 
Miller  v.  Gillespie,  59  Mo.  220,  240 
Miller,    Hackleman  v.  4   Blackf. 

(Ind.)  322,  53 

Miller  v.  Howry,  3  Pen.  &  Watts 

(Pa.)  374,  213 

Miller  v.  Irvine,  1  Dev.  &  Bat.  103,  68 
Miller,  Lyndon  v.  36  Vt.  329,  445 

Miller,  Lyons  v.  6  Gratt.  (Va.)  427,  16 
Miller  v.  McCan,  7  Paige  Ch.  R. 

451,  290 

Miller,  Miller  v.  Phillips  Eq.  (Nor. 

Car.)  85,  276 

Miller  v.  Moore,  3  Humph.  (Tenn.) 

189.  447,  466 
Miller,  Neff  y.  8  Pa.  St.  .347,  261,  283 
Miller,  Norton  v.  25  Ark.  108,  30,  283 
Miller  v.  OrJ,  2  Binney,  (Pa.)  382,'  21S 
Miller,  Owens  v.  29  Md.  144,  282 


TABLE   OF   CASES. 


CV 


Section 
Miller  v.   Pendleton,  4    Hen.    & 

Munf.  (Va.)  436,  275 

Miller  i;.  Porter,  5  Humph.  (Tenn.) 

294,  325 

Miller,  Regina  v.   20  Up.  Can.  Q. 

B.  R.  485,  144 

Miller,  Robinson  v.  2  Bush  (Ky.) 

179,  307 

Miller  v.  Sawyer,  30  Vt.  412,  233 

MiUer,  State  v.  5    Blackf.  (Ind.) 

381,  272 

Miller,  Schock  r.  10  Pa.  St.  401,  383 
Miller  v.  Stem,  9  Pa.  St.  286,  298 

Miller  v.  Stem,  12  Pa.  St.  383,  349 
Miller  v.  Stewart,  9  "Wheaton,  680,  342 
Miller  v.  Stewart,   4  Washington 

(C.  C.)  26,  342 

Miller  v.  Speed,   9  Heisk.  (Tenn.) 

196,  192 

Miller,    Taylor    v.    PhUlip's    Eq. 

(Nor.  Car.)  365,  192 

Miller,  Trustees  of  Section  Sixteen, 

V.  3  Ohio,  261,  216 

Miller  v.  Tunis,  10  Up,  Can,  C.  P, 

R.  423,  127 

Miller,  Wells  v.  66  New  York,  255,  228 
Miller,  White  v.  47  Ind.  385,  176 

Milner  v.  Green.  2  Johns.  Cas.  233,  431 
Milne,  Houlditch  v.  3  Esp.  86, 

50.  51,  84 
Milory,  Ayres  v.  53  Mo.  516,  354 

Minis  V.  McDowell,  4  Ga.  182,  181,  185 
M'met  ex  parte,  liYesey,  ISd,  68 

Minter  v.  Branch  Bank  at  Mobile, 

23  Ala.  762,  392 

Miner,  Benedict  v.  58  111.  19,  3^4 

Miner  r.  Graham,  24  Pa.  St.  491,  113 
Mines  i\  Sculthorpe,  2  Camp.  215,  77 
Mississippi  County  v.  Jackson,  51 

Mo.  23.  447 

Mishler,  Deitzler  v.  37  Pa.  St.  82,  25 
Mitchell  V.  Burton,  2  Head  (Tenn.) 

613,  335,  383 

Mitchell,  Collins  v.  5  Fla.  364, 

30,  408 
Mitchell    ?'.    Commonwealth,     12 

Bush  (Ky.)  247,  426 

Mitchell  V.  Gotten,  Exr.  2  Florida, 

136,  290 


Section 
Mitchell  V.  Gotten,  Exr.  3  Fla.  134,  363 
Mitchell  V.  De  Witt,   25    Texas, 

(Supplement)  180,  227 

Mitchell,  Dietrich  v.  43  III.  40,  149 
Mitchell  V.  Duncan,  7  Florida,  13,  12 
Mitchell,  Holmes  v.  7  J.  Scott  (N. 

S.)  361,  67 

Mitchell,    Martin   v.    2  Jacob   & 

Walk.  413,  75 

Mitchell  V.  McLeary,  42  Md.  374,  164 
Mitchell,  Montague  v.  28  111.  481,  309 
Mitchell,  New  Haven  Co.  Bank  p. 

15  Ct.  206,  98,  1G6 

Mitchell  V.  Turner,  37  Ala.  660,  245 
Mitchell  V.  Williamson,  6  Md.  210, 

82,  392 
M'Neale  v.  Reed,  7  Irish,  Ch.  Rep. 

251,  275 

Moakley  v.  Riggs,  19  Johns.  69,  84 
Moale    V.   Buchanan,    11    Gill    & 

Johns.  (Md.)  314,  66 

Moberly,  Moore  v.  7  B.  Mon.  (Ky.) 

299,  233 

Moberly,  Smith  v.  10  B.  Mon.  (Ky.) 

266,  94,  354 

Mobile  and  Girard  R.  R.  Co.,  Cox 

V.  44  Ala.  611,  309 

Mobile  and  Girard  R.  R.  Co.,  Cox 

V.  37  Ala.  320,  293,  309 

Mobile  and  G.  R.  R.  Co.  v.  Jones, 

57  Ga.  198,  53 

Mobley,  Garvin  v.  1  Bush  (Ky.)  48,  349 
Mockbee,   Goddard  v.   5   Ci-anch, 

(C.  C.)  666,  49 

Modisett    v.   Governor,   2  Blackf. 

(Ind.)  135,  522 

Mohler,  Stickney  v.  19  Md.  490,'.  26 
Monro,  Cherry  v.  2  Barb.  Ch.  R. 

618,  -24 

Monson  v.  Drakeley,  40  Ct.  552,  223 
Montefiore  v.  Lloyd,  15  J.  Scott  (N. 

S.)  203,  93 

Monteith    v.    Commonwealth,    15 

Gratt.  (Va.)  172,  29 

Montpelier  Bank  v.   Dixon,  4  Vt. 

587.  381 

Montague  v.  Mitchell,  28  111.  481,  309 
Montague,    Syme    v.    4    Hen.   & 

Munf.  180,  405 


CVl 


TABLE   OF   CASES. 


Montgomery 
Smedes    & 


174 


184 


97 


173 

109 
478 

289 

112 

447 


Section 
V.     Dillingham,     3 
Mar.    (Miss.)    617, 

296,  519 
Montgomery  v.  Ilamilton,  40  Ind. 

m,  300 

Montgomery,   Kearnes  v.  4  West 

Va.  29,  1,  147 

Montgomery  v.  Kellogg,  43  Miss. 
486,  163, 

Montgomery  v.    Russell,    10    La. 

(Curry)  330, 
Montgomery,   Smith   v.  3  Texas, 

199, 
Moody,   Taylor    v.    3    Blackford, 

(Ind.)  92, 
Moody,   Woodson  v.    4    Humph. 

(Tenn.)303, 
Moodii  17.  Penman,  3  Dessaussure, 

Eq.  (So.  Car.)  482, 
Moon,  People  v.  3  Scam.  111.  123, 
Mooring,  Woodman  v.  3  Dev.  Law 

(Nor.  Car.)  237, 
Moore  v.  Roberts,  3  J.  Scott  (N.  S.) 

8:30, 
Moore  v.  Alleghany  City,  18  Pa.  St. 

55, 
Moore,  Boston  &  Sandwich  Glass 

Co.  V.  119  Mass.  435,  130,  135 

Moore  v.  Bray,  10  Pa.  St.  519,  269 

Moore  v.  Bowmaker,  2  Marshall, 

392,  416 

Moore  v.  Bovrmaker,  6  Taunt.  379,  416 
Moore,  Bowmaker,  v.  3  Price,  214,  416 
Moore,  Bowmaker  v.  7  Price,  223,  416 
Moore  v.   Bowmaker,  2  Marshall, 

81,  416 

Moore  v.  Broussard,  20  Martin  (La.) 

8  N.  S.  277,  296 

Moore  t'.  Campbell,  36  Vt.  361,  264 
Moore,  Croft  v.  9  Watts  (Pa.)  451,  269 
Moore  t-.  Folsom.  14  Minn.  340,  149 
Moore.   Frederick  v.   13  B.    Mon. 

(Ky.)  470,  383 

Moore,  Govan  v.  30  Ark.  667,  109 

Moore  v.  Gray,  26  Ohio  St:  525,  392 
Moore,  Griffin  r.  2  Kelly  (Ga.)  331, 

4-26,  428 
Moore,  Harter  v.  5  Blackf.  (Ind.) 
367.  8G2 


Sectiox 
Moore  v.  Holt,  10  Gratt.  (Va.)  284,  88 
Moore,  Hightower  v.  46  Ala.  387,  113 
Moore  v.  Isley,  2  Dev.  &  Batt.  Eq. 

(Nor.  Car.)  372,  245 

Moore  v.  Loring,  106  Mass.  455,  410 
Moore,  Miller  v.  3  Humph.  (Tenn.) 

189.  447, 466 

Moore  v.  Moberlv,  7  B.  Mon.  (Ky.) 

299,  233 

Moore  €.  Paine,  12  Wend.  123,  123 
Moore  v.  Potter,  9  Bush  (Ky.)  357,  461 
Moore  v.  State,  28  Ark.  480,  106 

Moore,  State  v.  49  Ind.  558,  490 

Moore,  Tanner  v.  9  Queen's  B.  1,  134 
Moore  v.  Waller's  Heu's,  1  A.  K. 

Marsh.  (Ky.)  488,  126 

Moore,  Wells  v.  3  Robinson  (La.) 

156,  108 

Moore,  Wesley  Church  v.  10  Pa.  St. 

273,  176,  199 

Moore,  Wheelwright  v.  2  Hall  (N. 

Y.)  162,  7 

Moore,  Woodward  v.  13  Ohio  St. 

136,  526 

Moore  r.  Horsham,  5  Ala.  645,  293 
More  V.  Howland,  4  Denio,  264,  81 

Moreau,  Hubert  v.  12  Moore,  216,  75 
Morgan,  Allen  v.  5  Humph.  (Tenn.) 

624,  10, 217 

Morgan  v.  Blackiston,  5  Harr.  & 

Johns.  (Md.)  61,  411 

Morgan,  Bradbury  v.    1   Hurl.  & 

Colt.  249,  113 

Morgan  v.  Coffman,  8  La.  An.  56,  391 
Morgan  r.  Long,  29  Iowa,  434,  453 
Morgan  v.  Martien.  32  Mo.  4-38,  320 
Morgan,  Neil  v.  28  111.  524,  15 

Morgan,  Seacord  v.  4  Abb.   Rep. 

Om.  Cas.  172,  393 

Morgan,   Seacord  v.  3  Keyes  (N. 

Y.)  636,  393 

Morgan  v.  Seymour,   1  Reports  in 

Chancery,  120,  263 

Morgan  v.  Sraith,^7  Hun  (N.  Y.) 

244,  364 

Morgan  et  al  v.  Their  Creditors,   1 

(La.)  (Miller)  527,  316 

Morgan,  Worel  v.  5  Sueed  (Tenn.) 
79,  384 


TABLE    OF    CASES. 


evil 


Section 
Morin  V.  Martz,  13  Minn.  191,  58,  75 
Morley  V.  Boothly,  3  Bing-.  107, 

68,  71 
Morley  v.  Boothby,  10  Moore,  395, 

7,  9,  71 
Morley  v.  Dickinson,  12  Cal.  561,  378 
Morley  v.  Inglis,  5  Scott,  314,  203 

Morley  v.  Ingiis,  4  Bing-  (N.C.)  58,  203 
Morley  v.  Town  of  Metamora,  78 

111.  394,  467,  522 

Morley,  Wright  v.  11  Vesey,  12,  280 
Mortland  v.  Himes,  8  Pa.  St.  205,  129 
Morrell  v.  Cowan,  Law  Rep.  6  Eq. 

Div.  166,  9,  109 

Morrice  v.  Redwyn,  2  Barnardiston, 

20,  178 

Morrill,  in  re.  2  Sawyer,  356,  288 

Morrill,  Smith  v.  54  Me.  48,  226 

Morris,  Buckner  r.  2  J.  J.  Marsh. 

(Ky.)  121,  273 

Morris  v.  Cleasby,  4  Maule  &  Sel. 

566,  57 

Morris'  Canal  &  Banking  Co.    v. 

Van  Vorst's  Admx.  1  Zab.  (N. 

J.)  100,  343,  369,  479 

Morris,    Eichelbergcr  v.   6   Watts 

(Pa.)  42,  124 

Moms,  Hoover  v.  3  Ohio,  56,  54 

MoiTis  V.  Kniffin,  37  Barb.  (N.  Y.) 

336,  75 

Morris,  MoiTis  v.  9  Heisk.  (Tenn.) 

814,  497 

Morris  v.  Wadsworth,   17  Wend. 

103,  169 

Morrison,  Baker  v.  4  La.  An.  372,  12 
Morrison    v.   Berkly,    7  .  Serg'.    & 

Rawle  (Pa.)  238,  181 

Morrison. Carnegie «;.  2Met.  (Mass.) 

881,  67 

Moirison,  Guthrie  v.  1  Harrington 

(Del.)  368,  436 

Morrison  v.  Hartman,  14  Pa.  St. 

55,  382 

Morrison's  Exr.  Higgins  v.  4  Dana 

(Ky.)  100,  235 

Morrison  v.  Jack,  48  Pa.  St.  113,  283 
Morrison  v.  Marvin,  6  Ala.  797,  272 
Morrison  v.  Page,  9  Dana  (Ky.) 

428,  199 


Section 
Morrison  v.  Poyntz,  7  Dana  (Ky.) 

307,  252,  254 

Morrison  v.  Taylor.  21  Ala.  779,  238 
Morrison,  Taylor  v.  26  Ala.  728,  235 
Morrison  v.  Turnour,  18  Vesey,  175,  75 
Morrison,  Warner  v.  3  Allen,  556, 

223,  232 
Morrow's  Admr.  r.  Peyton's  Admr. 

8  Leigh  (Va.)  54,  25 

Morrow,  Morrow  v.  2  Tenn.  Ch.  R. 

(Cooper)  549,  177 

Morrow,  Slevin  v.  4  Ind.  (2  Por- 
ter) 425,  384 
Morse,  Hill  v.  61  Me.  541,  241 
Morse  v.  Hodson,  5  Mass.  314,  12 
Morse  v.  Huntington,  40  Vt.  48S, 

320,  329 
Morse,  Slingerland  v.  7  Johns.  463,  50 
Morse  v.  Gleason,  64  New  York, 

204,  23 

Morton,  Cabot  Bank  v.  4  Gray,  156,  16 
Morton  v.  Dean,  13  Met.  (Mass.) 

385,  00,  76 

Morton,  Rice  v.  19  Mo.  263,  27,  383 
Morton  v.  Roberts,   4  T.  B.  Mon. 

(Ky.)  491,  316 

Mortlock  V.  BuUer,  10  Vesey,  292,  76 
Moser  v.  Libenguth,  2  Rawle  (Pa.) 

428,  118 

Moseley,  Russell  v.  3  Bro.  &  Bing. 

211,  9, 70 

Mosely  v.  Taylor,  4  Dana  (Ky.) 

542,  43 

Mosher,  Bangs  v.  23  Barb.  (N.  Y.) 

478,  317 

Mosher  v.  Hotchkiss,  2  Keyes,  589, 

70,  83 
Mosher  v.  Hotchkiss,  8  Abb.  Rep. 

Omitted  Cas.  (N.  Y.)326,         70,  83 
Mosier  v.  Waful,  56  Barb.  (N.  Y.) 

80,  84 

Moss  V.  Craft.  10  Mo.  720,  380 

Moss,  Curtis  v.   2  Robinson  (La.) 

367,  127 

Moss,  McCormick  v.  41  111.  352,  458 
Moss  V.  McCullough,  5  Hill  (N.  Y.) 

131,  524 

Moss  V.  McCullough,  7  Barb.  (N. 

Y.)  279,  26 


CVlll 


TABLE   OF   CASES. 


Section 
Moss  r.  rettongill,  0  Jlinn.  217, 

27,  378,  380 
Moss  r.  Riddle,  5  Crancli,  351,  349 
]^It.ss  r.  t^tate,  10  Mo.  338,  141 

Mutivos,  Simon  r.  1 W.  Blackstone, 

f.'J'J,  ''^ 

MotivDS,  Simon  f.  3  Burrow,  1,921,  76 
Mott,  Barnes  r.  64  New  York,  397,  21 
Mott,  Crafts  v.  4  New  York,  604,  25 
!iIoit,  Gay  r.  43  Ga.  252,  7 

Mott,  Lichten  v.  10  Ga.  138,  437 

I^Iountjoy  V.  Banks  Exrs.  6  Munt. 

(Va.)387,  198 

Mounts,  Hagar  v.  3  Blackf.  (Ind.) 

57,  362 

Moulton,  Campbell  v.  30  Vt.  667,  94 
Moulton,   Westphal    v.  45    Iowa, 

1C3,  88 

Moulton  V.  Noble,  1  La.  An.  192,  316 
Mountstcphen  v.   Lakeman,   Law 

Rep.  7  Q.  B.  196,  40,  42,  63,  64 

Mowbray  v.  Cunningham,  Hilary 
Term  1773,  Jones  v.  Cooper,  1 
Cowp.  227,  61 

Mowatt,  Phoenix  Fire  Ins.  Co.  v. 

6  Cow.  599,  431 

Moyle,   Boyd  v.  2  Man.  Gr.  &  S. 

G44,  9 

Mozley  v.  Tinkler,  1  Gale,  11,  160 

Mozley  r.  Tinkler,  5  Tyrwh.  416,  160 
Mozley  v.  Tinkler,  1  Cromp.  Mees. 

k  Ros.  692,  160 

Mt.  Olivet  Cemetery  Co.  v.  Sher- 

bert,  2  Head  (Tenn.)  116,  52 

]Hudd,  Fiynn  v.  27  111.  323,  17,  305 
:Muir.  State  r.  20  Mo.  303,  458 

Mulien,  Bagott  v.  32  Ind.  332,  229 
Muller  V.  Bohlens,  2  Wash.  C.  C. 

378,  57 

Mull-T  r.  Downs,  94  United  States, 

444,  195 

Muller  r.  Wadlington,  5  Richard- 
son (N.  S.)  So.  Car.  342,  375 
Mulford  V.  Estudillo,  23  Cal.  94,      378 
Mullen  V.  Scott,  9  La.  An.  173,        530 
Mundorff  v.  Singer,  5  Watts  (Pa.) 
172.  391 
•  Munford,  Bank  r.  6  Ga.  44,        17,  505 
Muutord  V.  Rice,  6  Munf.  (Va.)  81,  141 


Section 
Munson,  Beckley  v.  22  Ct.  299,  187 
Mundy,  Devore  v.  4  Strobhart  Law 

(So.  Car.)  15, 
Munger,  Postmaster  General  v.  2 

Paine,  189,  46^ . 

Municipality  of  W^hitby  v.  Flint, 

9  Up.  Can.  C.  P.  R.  449, 

445,  447,  472 
Municipal  Corporation  of  East  Zora 

V.  Douglas,  17  Grant's  Ch.  R. 


315 


469 


474 


462,  365, 

Municipal  Council  of  Middlesex  v. 

Peters,  9  Up.  Can.  C.  P.  R.  205, 

348,  351 
Munn,  Worrall  v.   5    New  York, 

229,  '^5 

Murphy,  Boehne  v.  46  Mo.  57,  132 

Murphy,  Crow  v.  12  B.  Mon.  (Ky.) 

444,  269 

Murphy,  Hubble  v.  1  Duvall  (Ky.) 

247,  349 

Murphy,  Palsgrave  v.  14  Up.  Can. 

C.  P.  R.  153,  71 

Murphy,  SulUvan  v.  23  Minn.  6,  49 
Mure,  ex  parte  2  Cox.  63,  288 

Murray  v.  Graham,  29  Iowa,  520,  17 
Murray,  Hindsdill  v.  6  Vt.  136,  233 
Murray  v.  Judah,  6  Cowen,  484.  315 
Murrell,   Gregory  v.   2  Ired.   Eq. 

(Nor.  Car.)  233,  233 

Musgrave    v.    Glasgow,     3    Ind. 

31, 48,  295 

Musgrave,  Perfect  v.  6  Price,  111,  296 
Mushat  V.  Brevard,  4  Dev.  (Nor. 

Car.)  73,  38 

Musick  V.  Beebe,  17  Kansas,  47,  496 
Musket  V.  Rogers,  8  Scott,  51,  206 

Musket  V.  Rogers,  5  Bing.  (N.  C.) 

728,  206 

Mussey,  Fessenden  v.  11  Cush.  127,  75 
Musseyv.  Rayner,  22  Pick.  223, 

131,  157,  174 
Musson,  Graham  v.  7  Scott,  769,  76 
Mussulman  v.  People,  15  111.  51,  440 
Myers  v.  First  National  Bank,  78 

111.  257,  309 

Myers  v.  Fretz,  4  Pa.  St.  344,  494 

Myers  v.  United  States,  1  McLean 
4'j3,  294,  449 


TABLE    OF    CASES, 


CIX 


Section 
Myers  v.   Welles,  5  Hill  (N.  Y.) 

463,  317 

MjTiatt,  Owens  v.  1  Heisk.  (Tenn.) 

675,  5 

Mynderse,    United    States    v.    11 

Blatchford,  1,  443 

Myres  v.  Parker,  6  Ohio  St.  501,  393 
Myrick  v.  Hasey,  27  Me.  9,  36 

Myrick,  Wyche  v.  14  Ga.  584,  521 

Myron  Lodge,  Liebbrandt  v.  61  111. 


81. 


295 


Nabb  V.  Koontz.  17  Md.  283,  74,  128 
Nabb,  Little  r.  10  Mo.  3,  68 

Nagle,    Huzzard    v.    40    Pa.    St. 

178,  531 

Nail  V.  Springfield,  9  Bush  (Ky.) 

673,  314 

Nance,  Simpson  v.  1  Spears  (So. 

Car.)  4,  47,  49 

Napier  v.  Bruce,  8  Clark  &  Finncl- 

ly,  470,  138 

Nash  V.   Fugate,   24  Gratt.  (Va.) 

202,  355 

Nash  V.  Hartland,  2  Irish  Law  Rep. 

190,  70,  103 

Nash,  Ncal  v.  23  Ohio  St.  483,  271 
Nash,  Reed  v.  1  Wi!s.  305,  40,  43 

Nathan,  Cooke  v.  10  Barb.  (N.  Y.) 

342,  83,  348 

Nathan,  Pott  v.  1  Watts  &  Serg. 

(Pa.)  155,  227 

National  Exchange  Bank  v.  Silli- 

man,  65  New  York,  475,  275,  281 
National      Guardian      Assurance, 

Towle  V.  n  Giffard,  42,  351 

National  Peniberton  Bank  v.  Lou- 
gee,  108  Mass.  371,  149 
National  V.  B.  of  Bowdoinham, 

Jenkins  v.  58  Me.  275,  385 

Nations,  Parker  v.  33  Texas,  210,  378 
Naylor,  Doolittle  v.  2  Bosw.  N.  Y.) 

206,  51 

Naylor    v.    Moody,    3    Blackford 

(Ind.)  92,  382 

Neal,  Bronaugh  v.  1  Robinson  (La.) 

23,  203 

Neal  V.  Nash,  23  Ohio  St.  483,         271  | 


Section 
Neberroth  v.  Riegel,   71  Pa.  St. 

280,  63 

Needhams  v.  Page,  3    B.    Mon. 

(Ky.)  465,  147 

Neely,    Kannon    v.     10    Humph. 

(Tenn.)  288,  168 

Neel  V.  Harding,  2  Met.  (Ky.)  247,  17 
Neff's  Appeal  9  Watts  &  Serg. 

(Pa.)  36,  82,  375 

Neff  V.  Horner,  63  Pa.  St.  327,  331 
Neff,  Heading^on  v.  7  Ohio,  229,  517 
Neff  V.  Miller,  8  Pa.   St.  347, 

261,  283 
Neelson  v.  Sanborn,  2  New  Hamp. 

414,  68 

Neilson  v.  Fry,  16  Ohio  St.  552,  270 
Neil  V.  Morgan,  28  lU.  524,  15 

Nelson  v.  Anderson,  2  Call  (Va.) 

286,  402 

Nelson  v.  Boynton,  3  Met.  (Mass.) 

396,  50,  54 

Nelson  v.  Bostwick,  5  Hill,  37,  108 
Nelson  v.  First   National  Bank  of 

Chicago,  48  111.  36,  53 

Nelson,  Givens  v.  10  Leigh  (Va.) 

382,  234 

Nelson  v.  Hardy,  7  Ind,  364,  49 

Nelson    v.    Richardson,    4   Sneed 

(Tenn.)  307,  156 

Nelson  v.  Williams,  2  Dev.  &  Bat. 

Eq.  (Nor.  Car.)  118,  379 

Neptune  Ins.  Co.  v.  Dorsey,  3  Md. 

Ch.  R.  334,  266 

Nesmith,  Swan  v.  7  Pick.  220,  57 

Nettleton,  Tilleston  v.  6  Pick,  509, 

61,  64 
Nevens,  Foxcroft  r.  4Greenl.  (Me.) 

72,  447 

Novins  V.  Bank  of  Lansingburgh, 

10  Mich.  547,  67 

New,  Bailey  r.  29  Ga.  214,  209,  508 
Newbury  v.  Armstrong,  6  Bing. 

201,  70 

Newbury  v.  Armstrong,  3  Moore 

&  Payne,  509,  70 

Newbnry  v.  Armstrong,  Moody  & 

Malkin,  389,  70 

Newcomb  v.  Blakely,  1  Mo.  Appl. 

R.  289,  319 


ex 


TABLE   OF   CAS:fcS. 


Section 
Newcomb,  Hall  r.  3  Hill  (N.  Y.) 

2iy,  150 

Newcomb.  Hall  f.  7  Hill  (N.  Y.) 

416,  150,  153 

Newcomer,  Piper  v.  25  Iowa,  221,  17 
Newell,  Crane  r.  2  Pick.  612,  368 

Newell  r.   Fowler,   23  Barb.  (N. 

Y.)62.S.  82 

Newell  V.  Hamer,  4  How.  (Miss.) 

684,  27, 206 

Newell,  Harris  v.  42  Wis.  687,  1,  208 
Newell  r.  Hiirlburt,  2  Vt.  351,  191 

Newell  r.  Ingraham,  15  Vt.  422,  61 
Newell,  Kimball  v.  7  Hill,  116,  44,  128 
Newell  r.  Norton,  3  Wallace,  257,  407 
Newell,  Orvis  v.  17  Ct.  97,  17,  265 

Newell,  Prescott  v.  39  Vt.  82,  255 

Newhall,  Loomis  v.  15  Pick.  159, 

43,  49 
Newkirk,  Ringgold  v.  3  Ark.  (Pike) 

96,  168 

Newkirk,  Wood   v,  15    Ohio   St. 

295,  307 

Newlan    v.    Harrington,    24    111. 

206,  333 

Newman  r.  Campbell,   Martin  & 

Yerg.  (Tenn.)  63,  515 

Newman   v.    Metcalfe  Co.    Ct.  4 

Bush  (Ky.)  67,  406 

Newman    »'.  Hazlerigg,    1     Bush 

(Ky.)  412,  290 

Newsam  v.  Finch,  25  Barb.  (N.  Y.) 

175,  306 

Newsom  v.  McLendon,  6  Ga.  392,  280 
Newton,  Wheler  v.  2  Eq.  Cas.  44  c. 

5.  75 

Newton  i\  Chorlton,  2  Drewry,  333,  37U 
New  Haven  Bank  i\  Miles,  5  Ct. 

587,  435 

New  Haven  Co.  Bank  v.  Mitchell, 

15  Ct.  206,  98,  166 

New  Hampshire  Savings  Bank  v. 

Colcord,  15  New  Hamp.  119,  300,  370 
New  Hampshire  Savings  Bank  v. 

Ela,  11  New  Hamp.  335,       299,  305 
New  Hampshire  Savings  Bank  v. 

Gill,  16  New  Hamp.  578,  305 

New  Jersey  Midland  R.   R.   Co., 

Coe  V.  27  New  Jer.  Eq.  110,  260 


Section 
New  London  Bank  v.  Lee,  11  Ct. 

112,  218,  282 

New  Orleans  Canal  and  Banking 

Co.  V.  Escoffie,  2  La.  An.  830,  82,  391 
New  Orleans  Print.   &  Pub.  Co. 

Hawkins  v.  29  La.  An.  134,  98 

Ney  V.  Orr,  2  Montana,  559,  403 

Nichol  V.  Ridley,  5  Yerg.  (Tenn.) 

63,  66 

NichoU,  United  States  v.  12  Whea- 

ton,  505,  475 

Nichols  V.  Allen,  22  Minn.  283,  53,  85 
Nichols,  Howe  v.  22  Me.  175,  163 

Nichols  V.  Johnson,  10  Conn.  198,  67 
Nichols    V.    Johnson,     10    Conn. 

192,  66, 67 

Nichols,  King  v.  16  Ohio  St.  80, 

458,  470 
Nichols,  Lauman  v.  15  Iowa,  161,  19 
Nichols,  Mason  v.  22  Wis.  376,  121 
Nichols  V.  McDowell,  14  B.  Mon. 

(Ky.)  5,  208 

Nichols,  Noyes  v.  28  Ct.  159,  171,  175 
Nichols  V.  Parsons,  6  New  Hamp. 

30,  20,  328 

Nichols,  Scott  V.  27  Miss.  94,  199 

Nicholls  V.  Ingersoll,  7  Johns.  146,  427 
Nicholls,  Johnston  v.  1  Man.  Gr. 

&  Scott,  251,  70 

Nicholson  r.   Paget,    1  Cromp.  & 

Mees.  48;  Id.  3  Tyrwh.  164,  135 

Nickels,  Howe  v.  22  Me.  175,  157,  174 
Nickerson  v.   Chatterton,   7    Cal. 

568,  420 

Nickerson,  Mellen  v.  12  Gray,  445,  364 
Niemcewicz  v.  Gahn,  3  Ptiige,  614,  22 
Niemcewicz,    Gahn  v.    11    Wend. 

312,  22 

Nisbet  V.  Smith,  2  Brown  Ch.  Ca. 

579,  .  205,  326 

Nixon,   Bledsoe  v.   68  Nor.    Car. 

521,  273 

Nixon,  Carroll  v.  4  Watts  &  Serg. 

(Pa.)  517,  213 

Nixon,  Gale  v.  6  Cow.  (N.  Y.)  445,     66  " 
Noble,  Carman  v.  9  la.  St.  366, 

190,  213 
Noble,  Mouton  v.  1  La.  An.  192,  316 
Noble,  Osborn  v.  46  Miss.  449,         284 


TABLE   OF   CASES. 


CXI 


Section 
Xoland  v.  Clark,  10  B.  Mon.  (Ky.) 

239,  384 

Xolen,  Grimes  V.  3  Humph.  (Term.) 

412,  325 

Nottingham  Hide  Co.  v.  Bottrill, 

Law  Rep.  8  Com.  PI.  694,  132 

Nolley  V.  Calloway  County  Court, 

11  Mo.  447,  451,  522,  535 

Norment,  State  v.  12  La.  (Cuitj) 

511,  432 

Norman,  Ruble  v.  7  Bush  (Ky.) 

582,  289 

Northwestern  R.  R.  Co.  v.  Whin- 
ray,  1  Hurl.  &  Gor.  (10  Exch.) 

77,  341 

Northumberland  Bank  r.  Eyer,  58 

Pa.  St.  97,  33 

Norton  v.  Coons,  6  New  York,  33,  226 
Norton  v.  Coons,  3  Denio,  130,  223 
Norton  v.  Cammack,  10  La.  An.  10,  405 
Norton  V.  Eastman,  4  Greenl.  (Me.) 

521,  163, 319 

Norton  v.  Huxley,  13  Gray,  285,  59 
Norton  r.  Miller,  25  Ark.  108,  30,  283 
Norton,  Newell  v.  3  Wallace,  257,  407 
Norton,    People  v.   9  New*  York, 

170,  445 

Norton,  Sanford  v.  14  Vt.  228,  151,  153 
Norton  v.   Soule,   2  Greenl.  (Me.) 

341,  275 

Norton,  Spicer  v.  13  Barb.  (N.Y.) 

542,  71 

North  V.  Robinson,  1  Duvall  (Ky.) 

71,  5S 

North  British  Ins.  Co.  v.  Lloyd,  10 


Exchequer,  523, 


365 


Northern  Bank  of  Kentucky,  Ward 

r.  14B.  Mon.  (Ky.)283,  94 

Northwestern  Mut.  Life  Ins,  Co.  v. 

Allis,  23,  Minn.  82 

Norris  v.  Evans,  2  B.  Mon.  (Ky.) 

84,  271 

Norris  v.   Ham,  R.    M.    Charlton 

(Ga.)267,  271 

Norris,  Hatch  v.  36  Me.  419,  25 

Norris,  Reed  v.  2  Mylne  &  Craig, 

361,  182 

Norris,  Schneider  v.  2  Maule  &  Sel. 

286,  66,  75 


Section 
Norris,  Wolridge  v.   Law  Rep.  6 

Eq.  Cas.  410,  192 

Norwood,    Bell    v.    Louisiana,   (4 

Curry)  95,  98 

Noyes  v.    Humphreys,    11   Gratt. 

(Va.)  636,  55.  61,  64 

Noyes,  McQuesten  v.  6  New  Hamp. 

19,  25,  295 

Noyes  v.  Nichols,  28  Vt.  159,  171,  175 
Nowland  v.  Martin,  1  Iredell  Law 

(Nor.  Car.)  307,  '    249 

Nurre  v.  Chittenden,  56  Ind.  462,  225 
Nutzenholster   v.   State,  37    Ind. 

457,  443 


Oakeley  v.   Boorman,    21  Wend. 

588,  74,  81 

Oakeley  r.  Pasbellor,  10  Bligh  (N. 

S.)548,      ...-^^,  23 

Oakey,  Gasquet  v,  19  La.  (Curry) 

76,  197 

Oaks,  Pemberton  r.  4  Russell,  154, 

98,  286,  287 
Oaks  V.  Weller,  13  Vt.  106,  158 

Oaks  V.  Weller,  16  Vt.  63,        174,  175 
Obannon's       Exr.      McCormack's 

Admr.  v.  3  Munf.  (Va.)  484,  254 

O'Bannon  v.   Saunders,  24  Gratt. 

(Va.)  138,  485 

Obear,    Whittemore    v.    58    Mo. 

280,  350 

ObenidorfF  v.  Union  Bank,  31  Md. 

126,  288 

Oberreich,   Weed  Sewing  Machine 

Co.  V.  38  Wis.  325,  317 

O'Blenis  v.  Karing,  57  New  York, 

649,  245 

O'Callaghan,  Queen  v.  1  Irish,  Eq. 

R. 439,  265 

Ocheltree,  Strunk  v.  11  Iowa,  158,    484 
Odell,  Wootten  v.  33  Ga.  224,  409 

Odell  V.  Wotten,  4  Bankr.  Reg. 

183,  409 

Odlin  V.  Greenleaf,  3  New  Hamp. 

270,  199 

Odom,  State  v.  1  Speers  Law  (So. 

Car.)  245,  447 

O'Donnell  v.  Leeman,  43  Me.  158,     66 


cxu 


TABLE  OF  CASES. 


Section 
O'Donncll  v.  Smith,  E.  D.  Smith 

(N.Y.)  124,  53 

Oabrd  r.  Davies,  12  J.  Scott  (N.  S.) 

748,  114 

Offutt  p.  .Commonwealth,  10  Bush 

(Ky.)  212,  460 

Offutt,  McCaulcy  v.  12  B.  Mon. 

(Ky.)  386,  421 

Offutt.  Robinson  v.  7  T.  B.  Monroe 

(Ky.)  540,  119,  316 

Ogden  V.  Aspinall,  7  Dow.  &  Ry- 

land,  637,  103 

Ogden,  Bailey  c.  3  Johns.  399,  07,  75 
Ogden  V.  Blydenburgh,  1  Hilton 

(N.  Y.)  182,  16 

Ogden,  Mechanics'  Fire  Ins.  Co.  v. 

1  Wend.  137,  169 

Ogden  V.  Rowe,  3  E.  D.  Smith, 

(N.  Y.)  312,  339 

Ogden,   Shcpard  v.  2  Scam.  (111.) 

257,  199 

Ogier  r.  Higgins.  2  McCord  Law 

(So.  Car.)  8,  437 

Ogilvie  V.  Foljambe,  3  Merlvale, 

53,  75 

Ogle  V.  Graham,  2  Pen.  &  Watts 

(Pa.)  132,  333 

Ohio  Life  Ins.  Co.  v.  Ledyard,  8 

Ala.  806,  283 

Ohio  Life  Ins.  &  Trust  Co.  v.  Reed- 

er,  18  Ohio,  35,  284 

Ohio,  Peabody  v.  4  Ohio  St.  387,  482 
Okeson,  Brubaker  v.   30  Pa.  St. 

519,  212 

Okie    V.   Spencer,   1    Miles    (Pa.) 

299,  ,317 

Olcott  V.  Lilly,  4  Johns.  407,  428 

Oldershaw  v.  King,  2  Hurl.  &  Nor. 

517,  8,  70 

Oldham  r.  Broom,  28  Ohio  St.  41,  230 
Olds,  Stage  v.  12  Ohio,  1-58,  115 

Oliver's  Admr.  Finsley  v.  5  Munf. 

(Va.)  419,  273 

Oliver,  Olivers.  4  Rawle  (Pa.)  141,  352 
Olms'.ead  v.  Greenly,  18  Johns.  12,  51 
Olmsted,  Olmsted  v.  -38  Ct.  309,  118 
Oman,  Clark  v.  15  Gray,  521,  191 

O'Neill  1-.  Carter,  9  Up.  Can.  Q. 

B.  R.  470,  347 


Section 
Ontario  Bank  v.  Walker,   1   Hill 

(N.  Y.)  652,  272 

Orange  Co.  Bank,  Herricki).  27  Vt. 

584,  391 

Ord,  Miller    v.    2   Binney    (Pa. 

382,  218 

Ordinary  v.   Carlile,  1  McMullan 

Law  (So.  Car.)  100,  532 

Ordinary  V.  Cooley,  1  Vroom(iSr.  J.) 

179,  12 

Ordinary  i;.  Corbett,  Bay  (So.  Car.) 

328,  502 

Ordinary  v.  Kershaw,  1  McCarter 

(N.  J.)  527,  496 

Ordinary  v.  Wallace,  2  Richardson 

Law  (So.  Car.)  460,  532 

Ordinary  v.  Wallace,  1  Richardson 

Law  (So.  Car.)  507,  532 

Organ,  People  v.  27  111.  27,  3-35 

Oriental  Financial  Corporation  v. 

Overend,  Law  Rep.  7  Chancery 

Appl.  Cas.  142,  19 

Orleans  Navigation  Company,  Lou- 
isiana State  Bank  v.  3  La.  An. 

294,  3 

Orman,  Griffith  v.  9  Florida,  22,  260 
Orne,  Cooke  r.  37  111.  186,  157,  164 
OiTell  V.  Coppock,  26  Law  Jour. 

Ch.  269,  53 

Orr,  Ney  v.  2  Montana,  559,  403 

OiT,  Tennant  v.  15  Irish  Com.  Law 

R.  397,  106 

Orvis  r.  Newell,  17  Ct.  97,  17,  265 

Osbom  V.  Cunningham,  4  Dev.  & 

Bat.  Law  (Nor.  Car.)  423,  242 

Osbom  V.  Noble,  46  Miss.  449,  284 
Osborne  v.  United  States,  19  Wal- 
lace, 577,  475 
Oshiel  V.  DeGraw,  6  Cowen,  63,  93 
Osgood,   Harp  v.   2   Hill  (N.  Y.) 

216,  426,  440 

Osgood,  Osgood  V.  39  New  Hamp. 

209,  191 

Osgood,  Vielie  v.  8  Barb.  (N.  Y.) 

1.30,  66,  75 

Ostrom,  Claflin  r.  54  New  York, 

581,  34 

Oswald  V.  Mayor  of  Berwick,   5 

House  of  Lords,  Cas.  856,  144 


TABLE    OF    CASES. 


CXI  11 


Section 
Oswald,  Mayor  of  Berwick  f.  3  Ell. 

&  Black.  653,  471 

Oswald,  Mayor  of  Berwick  v.  1  Ell. 

&  Black.  295,  471 

Other  V.  Iveson,  3  Drewiy,  177,        117 
Otis,  Board  of  Supervisors  v.  62 

New  York,  88,  474 

Otis  V.  Haseltine,  27  Cal.  80,  73 

Otis,  Vivian  v.  24  Wis.  518,  466 

Ottoman  Bank,  Black  v.  15  Moore's 

Priv.  Cou.  Gas.  472,  368 

Otto  V.  Jackson,  35  111.  349,  31 

Ouland,  Allaire  v.  2  Johns.  Gas.  52,  46 
Outlaw  V.  Roddick,  11  Ga.  669,        193 
Overturf  V.  Martin,  2  Ind.  (2  Gar- 
ter) 507,  505,  511 
Overend,  Oriental  Financial  Gor- 
poration  v.  Law  Rep.  7  Ghanceiy 
Appl.  Gas.  142,  19 
Over,  Rupp  v.  3  Brewster  (Pa.) 

133,  200 

Overton  v.  Tracy,  14  Serg.  &  Rawle 

(Pa.)  311,  173 

Overton  v.  Woodson,  17  Mo.  453,    498 
Overacre  v.  Garrett,  5  Lansing  (N. 

y.)  156,  460 

Ovington  v.  Smith,  78  111.  250,  414 

Owen,  Bryant,  Guardian  r.  1  Kelly 

(Ga.)  355,  467,  533 

Owen  V.  Homan,  13  Beavan,     196,  329 
Owen  V.  Homan,  3  Macn.  &  Gor. 

378,  200 

Owen  V.  Long,  112  Mass.  403,  8 

Owen  V.  State,  25  Ind.  371,  497 

Owen  V.  Thomas,  3  Myl.  &  Keen, 

353,  66 

Owen,  Williams  v.  13  Simons,  597,  275 
Owens  V.  Miller,  29  Md.  144,  282 

Owens  V.  Mynatt,  1  Heisk.  (Tenn.) 

675,  5 

Oxford  Bank  v.  Haj-nes,   8   Pick. 

423,  1.54,  168 

Oxford    Bank    v.    Lewis  8    Pick. 

458,  305 

Oxford,  Peers  v.  17  Grant's  Gh.  R. 

472,  365 

Oxford  &  Worcester    R.    R.    Go. 

Woodcock  I'.  1  Drewry.  521,         334 
Oxley  V.  Storer,  54  111.  159,  320 

H 


Section 
Oxley  V.  Young,  2  H.  Blackstone, 
613,  212 


Pace  V.  Marsh,  1  Bing.  216,    •  70 

Pace  V.  Marsh,  8  Moore,  59,  70 

Pack,  Goles  v.  Law  Rep.  5  Com. 

PI.  65,  L34 

Packard,  Gm-iac  v.  29  Gal.  194,  295 
Packard,  Pain  v.  13  Johns.  174,  206 
Packard  v.  Richardson,  17  Mass. 

122,  68 

Paddock,  Grouse  v.  8  Hun  (N.  Y.) 

630,  440 

Padgett,  Hutton  v.  26  Md.  228,  68,  70 
Page,  Black  River  Bank  v.  44  New 

York,  453,  390 

Page  V.  Bussell,   2  Maule  &  Sel. 

551,  189 

Page,  Cobb  v.  17  Pa.  St.  469,  6 

Page,  Gooper  v.  21  Me.  73,  81,  170 
Page,   Kidder  v.   48  New  Hamp. 

380,  ,  217 

Page,  Morrison  v.  9  Dana  (Ky.) 

428,  199 

Page,  Needhams  v.  3  B.  Mon.  (Ky.) 

465,  147 

Page,  Prindle  r.  21  Vt.  94,  245 

Paget,   Nicholson  v.  1   Cromp.   & 

Mees.  48  Id.  3  Tyrwh.  164,  78,  135 
Pahlman  v.  Taylor,  75  111.  629,  147,  333 
Pam  V.  Packard,  13  Johns.  174,  206 
Paige  V.  Parker,  8  Gray.  211,  167,  173 
Paine  v.  Drury,  19  Pick.  400,  109 

Paine,  Moore  v.  12  Wend.  123,  123 
Paine  v.  Voorhees,  26  Wis.  522,  318 
Pallas,  Latouche  v.  Hayes  (Irish.) 

450,  264 

Palmer  v.  Bagg,  56  New  York,  523,  100 
Palmer  v.   Baker,  23  Up.  Gan.  G. 

P.  R.  302,  67 

Palmer,  Goodhue  v.  13  Ind.  457,  310 
Palmer,  Jones  v.  1  Doug.   (Mich.) 

379,  53,  68 

Palmer,  Lewis    v.  28  New  York, 

271,  275 

Palmer  v.  Stephens,  1  Denio,  471,  75 
Palmer,  Thomson  v.  3  Richardson 

Eq.  (So.  Gar.)  139,  271 


ex  IV 


TABLE   OF   CASES. 


Sectio  n 
Palmer,  Villars  r.  G7  111.  204,  392 

Palethorpe  r.  Leslier,  2  Rawlc  (Pa.) 

272,  425 

Prtlsgrave  v.  Murphj",  14  Up.  Can. 

C.  P.  R.  153,  ''1 

Parhara  Sew.  Macb.  Co.  v.  Brock, 

113  Mass.  194,  94,  98 

Parham  v.  Cobb,  9  La.  An.  423,       412 
Parham  v.  Green,  64  (Nor.  Car.) 

4.36,  257 

Parisb,  Bums  r.  3  B.  Mon.  (Ky.) 

8,  186 

Paris  V.  Hulett,  26  Vt.  303.  282 

Parke,  Dilts  v.  1  Soutb.  (N.  J.)  219,  49 
Parkburst  v.   Van    Cortland,    14 

Johns.  15,  66 

Parkinson,  Lindsay  v.  5  Irisb  Law, 

Rep.  124,  337 

Parkis,  Craig  r.  40  New  York,  181, 

34,  82,  85 
Paries  I.  Brinkerboff,  2  Hill  (N.  Y.) 

663,  15 

Parks,  Bums  v.  53  Ga.  61,  200 

Parks,  Dearborn  v.  5  Greenl.  (Me.) 

81,  52 

Parks  r.  State,  7  Mo.  194,  392 

Park  I'.  State,  4  Ga.  329,  434,  438 

Parker   v.  Alexander,  2    La.  An. 

188,  391 

Parker,  Appleton  v.  15  Gray,  173,    317 
Parker,  Barker  v.  1  Dum.  &  East 

287,  99 

Parker,  Bean  v.  17  Mass.  591,  127 

Parker  v.  Bid  well,  3  Ct.  84,  427 

Parker  v.  Bradley,  2  Hill  (N.  Y.) 

584,  9,  127 

Parker,  City  of  Lowell  v.  10  Met. 

(Mass.)  309,  484,530 

Parker,  Coombs  v.  17  Ohio,  289,       390 
Parker,  Fox  v.  44  Barb.  (N.  Y.) 

541,  318 

Parker,  Jennison  r.  7  Mich.  355,  384 
Parker  v.  Leek,  1  Stew.  (Ala.)  523,  179 
Parker,  Millett  v.  2  Met.  (Ky.)  608,  354 
Parker,  Myres  v.  6  Ohio  St.  501,  393 
Parker  r.  Nations,  33  Texas,  210,  378 
Parker,  Paige  v.  8  Gray,  211,  167,  173 
Parker,  Pearson  v.  3  New  Hamp. 
366,  179,  181 


Section 
Parker,   Propert  v.  Russ.   &  My. 

625,  '^•5 

Parker  v.  Riddle,  11  Obio,  102,  148 
Parker  v.  State,  8  Blackf.  (Ind.) 

292,  521 

Parker,  Stewart  v.  55  Ga.  656,  17,  299 
Parker  v.  Sterling,  10  Obio,  357,  429 
Parker,  Sbei-raden  v.  24  Iowa,  28,  386 
Parker  v.  Wise,  6  Maule  &  Sel. 

239,  103 

Parkell,  McMillan  v.  64  Mo.  286,  28 
Pamell  15.  Hancock,  48  Cal.  452,  399 
Parnell  v.  Price,  3  Richardson  Law 

(So.  Car.)  121,  298 

Parr,  Rawstone  v.  3  Russell,  259,  117 
Parisb,  Burns  v.  3  B.  Mon.(Ky.)8,  181 
Parrisb  v.  Gray,  1  Humpb.  (Tenn.) 

88,  504 

Parramore,  Gammell  v.  58  Ga.  54,  170 
Parrott,  Gross  v.  16  Cal.  143,  313 

Parsons,  Hargreaves  v.  13  Mees.  & 

Wels.  561,  58 

Parsons,  Nicbols  v.  6  New  Hamp. 

30,  20,  328 

Parsons  v.  Williams,  9  Ct.  236,  422 
Partridge  v.  Davis,  20  Vt.  499,  33,  154 
Partridge,   Exall    v.    8    Dum.    & 

East.  308,  178 

Pashellor,  Oakeley  v.  10  Bligb  (N. 

S.)  548,  23 

Pasley  v.  Freeman,  3  Term  R.  51,  59 
Passmore,  Tyson  v.  2  Pa.  St.  122,  352 
Passumpsic  Bank  v.  Goss,  31  Vt. 

315,  354 

Patchin  V.  Swift,  21  Vt.  292,  68 

Paterson,   City    of   Council    v.    2 

Bailey  Law  (So.  Car.)  165,  474 

Pattani,  Draper  v.  2    Spears  (So. 

Car.)  292,  66 

Pattee,  Chute  v.  37  Me.  102,  307 

Patten,  v.  Gurney,  17  Mass.  182,  59 
Patten,  Huntress  v.  20  Me.  28,  84,  202 
Patten,  James  v.  8  Barb.  (N.  Y.) 

344,  75 

Patterson,  Barney  v.    6    Har.    & 

Jobns.  (Md.)  182,  66 

Patterson  v.  Cave,  61  Mo.  439,  128 

Patterson,  Conant  v.  7  Vt.  163,  438 
Patterson,  Dumas  v.  9  Ala.  484,       466 


TABLE   OF   CASES. 


CXV 


Section 
Patterson,  Gwyn  v.  72  Nor.  Car, 

189,  355 

Patterson  ats.  Inhabitants  of  Town- 
ship of  Freehold,  38  N.  J.  Law, 

255,  468 

Patterson  v.  Martin,  7  Ohio,  225,  188 
Patterson  v.  Pope,  5  Dana  (Ky.) 

241,  268 

Patterson  v.  Reed,  7  "Watts  &  Serg. 

(Pa.)  144,  160 

Patterson,   Swan    v.  7    Md.   164, 

266,  268 
Patterson,  Sawyer's  Admr.  11  Ala. 

523,  382 

Pattison  v.  Belfield  Union,  1  Hurl. 

&  Gor.^23,      •  473 

Pattison,  Belfield  Union  v.  2  Hurl. 

&  Gor.  623,  473 

Patton,  Clark  v.  4  J.  J.  Marsh.  (Ky.) 

33,  311 

Eatton  V.  Shanklin,   14  B.   Mon. 

(Ky.)  13,  333 

Paul  V.  Berr5',  78  111.  158,  20 

Paul  V.  Jones,  1  Durn.  &  East,  599,  189 
Paul  v.  Stackhouse,  3S  Pa.  St.  302,  7 
Paulin,  Bampton  v.  4  Bing.  264, 

49,  61,  54 
Paulin  V.  Kaighn,  5  Dutcher  (X, 

J.)  480,  235 

Paulin  V.  Kaighn,  3  Dutcher  (X. 

J.)  503,  "       226 

Pawling  V.  United  States,  4  Cranch, 

219,  357 

Pawle  V.  Gunn,  4  Bing.  N.  C.  445,  38 
Paw  Paw  V.  Eggleston,  25  Mich.  36,  268 
Paxton,  Corporation  of  Ontario  v. 

27  Up.  Can.  C.  P.  R.  104,  472 

Paxton,  Lansen  v.   22  Up.  Can.  C. 

P.  R.  505,  225 

Payne  v.  Able,  7  Bush  (Ky.)  .344,  409 
Payne  v.  Baklwm,  14  Barb.  (N.Y.) 

570,'  03 

Payne,  Davis  r.  45  Iowa,  194,  508 

Payne,  Grider  v.  9  Dana  (Ky.)  188,  273 
Payne  v.  Ives,  3  Dow.  &  Ryl.  664,  102 
Payne,  Lucas  r.  7  Cal.  92,  49 

Payne  v.  Powell,  14  Texas,  600,  309 
Payne,  Royal  Canadian  Bank  v.  19 

Grant's  Ch.  R.  (Canada)  180,   21,  97 


Section 
Payne  v.  Webster,  19  111.  103,  503 

Payne  v.  Wilson,  7  Barn.  &  Cres. 

423,  9 

Pebbles,  Shepard  v.  38  Wis.  373,  533 
Peabody    v.    Chapman,    20   New 

Hamp.  418,  179 

Peabody  v.  Harvey,  4  Conn.  119,  61 
Peabody  v.  Ohio,  4  Ohio  St.  387,  482 
Peacock  v.  State,  44  Texas,  11,  431 
Peake,  Blalock    v.    3  Jones'   Eq. 

(Nor.  Car.)  323,  277 

Peake  v.  Estate  of  Dorwin,  25  Vt. 

28,  311 

Pearl  v.  Deacon,  1  DeGex  &  Jones, 

461,  291 

Pearl  v.  Deacon,  24  Beavan,  186,    291 
Pearl  Street    Congregational  So- 
ciety V.  Imlay,  23  Ct.  10,  374 
Pearl  v.  Wellmans,  11  111.  352,         401 
Pearson,  Anderson  v.  2  Bailey  Law 

(So.  Car.)  107,  220 

Pearson  v.  Gayle,  11  Ala.  278,  392 
Pearson,  Mahurin  v.  8  New  Hamp. 

539,  2 1 

Pearson  v.  Parker,  3  New  Hamp. 

366,  179,  181 

Pearsons,  Peoples  Bank  v.  30  Vt. 

711,  28,  30r. 

Pearce,  Bancroft  v.  27  Vt.  668,  197 
Pearce,  Wren  v.  4  Smedes  &  Mar. 

(Miss.)  91,  7,  68,  80 

Pease  r.  Hirst,  10  Bam.  &  Cress. 

122,  101,  120 

Peay,  Aiken  v.  5  Strob.  Law  (So. 

Car.)  15,  24S 

Peay  v.  Poston,  10  Yerg.  (Tenn.) 

Ill,  314 

Peck  V.  Barney,  13  Vt.  93, 

158,  170,  175 
Peck  V.  Druett's   Admr.   9  Dana 

(Ky.)  486,  36G 

Peck  V.  Frink,  10  Iowa,  193,  83,  170 
Peck  V.  Hozier,  14  Johns.  346,  431 

Peck,  State  v.  53  Me.  284,  355 

Peck,  Whitehead  v.  1  Kelly  (Ga.) 

140,  185,  202 

Pecker  v.  Julius,  2  Browne  (Pa.) 

31,  80,  117 

Peckham  v,  Faria,  3  Douglass,  13,     61 


CXVl 


TABLE   OF   CASES. 


Section 
Pecks,  Michigan  State  Bank  v.  28 

Vt.  200,  80,  97 

Peers  r.  Oxford,  17  Grant's  Ch.  R. 

472,  B65 

Peer  r.  Kean,  14  Mich.  354,  288 

Peel    r.  Tatlock,    1  Bos.   &  Pul. 

419,  368 

Peiper,  Bradj^  v.  1  Hilton  (N.  Y.) 

61,  352 

Pell,  Stephens  r.  4  TsTwh.  6,  49 

Pell,  Stephens  v.  2  Cromp.  &  Mees. 

710,  49 

Pelton  V.  Prescott,  13  Iowa,  567,      334 
I'omberton  r.  Oaks,  4  Russell,  154, 

98,  286,  287 
Penfieldr.  Goodrich  10  Hun(N.Y.) 

41,  24 

Penton,   Simpson  v.  2  Cromp.  & 

Mees.  430,  63 

Pennell  v.  Pentz,  4  E.  D.  Smith, 

(N.  Y.)  639,  64 

Pence  v.  Gale,  20  Minn.  257,  370 

Pendexter  v.  Vernon,   9  Humph. 

(Tenn.)  84,  320 

Pentz,   Pennell  v.  4  E.  D.  Smith, 

(N.  Y.)  639,  64 

Penick,  Bank  of  Limestone  v.  5  T. 

B.  Mon.  (Ky.)  25,  332 

Penick,  Bank  of  Limestone  r.  2  T. 

B.  Mon.  (Ky.)  98,  3:32 

Pennington  v.  Woodall,   17    Ala. 

685,  188 

Pendlebury  v.  Walker,  4  Younge 

&  Coll.  (Exch.)  424,  224,  350 

Pendell,  Bresler  v.  12  Mich.  224,         62 
Penman,  Moodie  v.  3  Dessaussure, 

Eq.  (So.  Car.) 482,  109 

Penniman  v.  Hartshorn,  13  Mass. 

87,  75 

Penniman  v.  Hudson,  14  Barb.  (N. 

Y.)  579,  85 

Penniman  People  v.  37  Cal.  271,       436 
I'enny  v.  Crane  Bros.  Man.  Co.  80 

111.  244,  82 

Penny,  Endicott  r.  14  Sm.  &  Mar. 

(Miss.)  144,  76 

Penoyer  j;.  Watson,  16  Johns.  100,     97 
Pennock,  People  v.  60  New  York, 
421,  451 


Section 
Penrice  v.  Crothwaite,  11  Martin, 

(La.)  0.  S.  537,  438 

Penn  v.  Collins,  5  Robinson  (La.) 

213,  a39 

Penn,  Crawford  v.  1  Swan  (Tenn.) 

388,  492 

Penn,  Turney  v.  16  111.  485,  115 

Pengelly,  Fair  v.  34  Up.  Can.  Q. 

B.  R.  611,  296 

Pendleton  v.  Bank  of  Kentucky,  1 

T.  B.  Mon.  (Ky.)  171,  319,  479,  521 
Pendleton,  Miller    v.   4    Hen.    & 

Munf.  (Va.)  436,  275 

Pepper,  Stater.  31  Ind.  76,  336, 855,  358 
Pepper  v.  State,  22  Ind.  399,  355,  358 
Peppin  v.  Cooper,  2  Bam.  «^  Aid. 

431,  140 

People  V.  Admire,  39  111.  251,  495 

People  V.  Aikenhead,  5  Cal.  106,  464 
People,  Albee  v.  22  111.  533,  30 

People,  Ammons  v.  11  111.  6,  462 

People  V.  Blackford,  16  111.  166,  469 
People  V.  Breyfogle,  17  Cal.  504,  127 
People    r.     Brown,    2    Douglass, 

(Mich.)  9,  S35 

People  t'.  Bryon,  3  Johns.  Cas.  53,  490 
People  V.  Buster,  11  Cal.  215,  461 

People  V.  Carpenter,  7  Cal.  402,  439 
People  V.  Chalmers,  60  New  York, 

154,  79,  108 

People  r.  Chisholm,  8  Cal.  29,  378 

People,  Combs  v.  39  111.  183,  127 

People,  Compher  v.  12  111.  290,  469 
People,  Coons  v.  76  111.  383,  466 

People  V.  Cm-ry,  59  111.  35,  461 

People,   Davis  v.   1   Gilman  (111.) 

409,  324 

People  V.  Dikeman,  3  Abb.  Rep. 

Om.  Cas.  520,  485 

People  V.  Dunlap,  13  Johns.  437,  502 
People  V.  Edwai-ds,  9  Cal.  286,  442 

People,  Elkins  v.   3   Scam.    (111.) 

207,  458 

People  V.  Evans,  29  Cal.  429,  461 

People,  Gingrich  v.  34  111.  448,  430 
People  V.  Greene,  5  Hill  (N.  Y.) 

647,  433 

People  V.  Hartley,  21  Cal.  585,  127 
People  f.Herr,  81  111.  125,  480 


TABLE   OF    CASES. 


CXVll 


Section 
People,  Huggins  v.  39  III.  241,  430, 434 
People,  Jack  v.  19  111.  57,  4 

People  V.  Jansen,  7  Jolms.  332, 

209,  474 
People  V.  Jenkins,  17  Cal.  500,  29 

People  V.  Kneeland,  31  Cal.  288,  335 
People  f.  Leet,  13  111.  261,  269 

People,  Mather  v.  12  111.  9,  428 

People  V.  McHatton,  2  Gilman  (111.) 

731,  324,  469 

People  V.  Moon,  3  Scam.  (111.)  123,  473 
People,  Mussulman  v.  15  111.  51,  440 
People  V.  Norton,   9    New  York, 

176,  445 

People  V.  Penniman,  37  Cal.  271,  436 
People  V.  Pennock,  60  New  York, 

421,  451 

People,  Pinkstaff  v.  59  111.  148,  461,  466 
People,  Plummer  v.  U  111.  358,  434 
People,  Pritcliett  v.  1  Gilman  (lU.) 

5^5,  13 

People  V.  Organ,  27  111.  27,  335 

People,  Reitz  v.  72  111.  435,  493 

People  r.  Russell,  4  Wend.  570,  474 
People,  Sans  v.  3  Gilman  (111.)  327,  438 
People  V.  Schuyler,  5  Barb.  (N.  Y.) 

16G,  484 

People,  Seely  v.  27  lU.  173,  358 

People  V.  Shirley,  18  Cal.  121,  439 

People  V.  Sloper,  1  Cummins  (Ida- 
ho) 183,  435 
People,  Shook  v.  39  111.  443,  450 
People  V.  Skidmore,  17  Cal.  260,  280 
People,  Tappan  v.  67  111.  339,  456 
People  V.  Tompkins,  74  111.  482,  469 
Peoples.  Treadway,  17  Mich.  480,  452 
People  V.  Vilas,  36  New  York,  459,  469 
People,  Wann  v.  57  111.  202,  473 
People  V.  White,  11  111.  341,  392 
People  V.  Wolf,  16  Cal.  385,  537 
Peoples  Bank  v.  Pearsons,  30  Vt. 

711,  28,  305 

Peoria  County  v.  Smith,  59  111.  412, 

355,  469 
Perigo,  G.  M.  &  T.  Co.  v.  Grimes, 

2  Colorado,  651,  416 

Perfects.  Musgrave,  6  Price,  111,  296 
Perrine  v.   Firemens  Ins.  Co.  22 

Ala.  575,  374 


Section 
Perrine  v.  Hotchkiss,  58  Barb.  (N. 

Y.)  77,  183 

Perrins  v.  Ragland,  5  Leigh  (Va.) 

552,  222 

Perrin,  Langford's  Exr.  v.  5  Leigh 

(Ya.)  552,  228 

Perth,  Cashin  v.  7  Grant's  Ch.  & 

Appl.  Rep.  340,  367 

Perpet,  Ins.  Co.,  Blair-  v.  10  Mo. 

559,  343,  521 

Perry    r.    Armstrong,     39     New 

Hamp.  583,  94,  313 

Perry  v.  BaiTct,  18  Mo.  140,  506,  512 
Perry  v.  Saunders,  36  Iowa,  427,  375 
Peny,  Todd  v.  20  Up.  Can.  Q.  B. 

R. 649,  447 

Peny,  Wood  v.  9  Iowa,  479,  257 

Perry  r.  Yarborough,  3  Jones'  Eq. 

(Nor.  Car.)  66,  195 

Perham    v.     Raynall,    9    Moore, 

566,  120 

Perkins  v.  Ament,  2  Head  (Tenn.) 

110,  94 

Perkins  v.   Barstow,  6  Rhode  Is. 

505,  120 

Perkins  v.  Catlin,  11  Ct.  213,  148,  153 
Perkins  v.  Cenas,  15  La.  An.  60,  457 
Perkhis  v.  EUiott,  8  C.  E.  Green, 

526,  4 

Perkins  v.  Goodman,  21  Barb.  (N. 

Y.)  218,  15 

Perkins,  Governor  v.  2  Bibb  (Ky.) 

395,  483 

Perkins  r.  Kershaw,  1  Hill  Eq.  (So. 

Car.)  344,  270 

Perkins  v.  Mayfield,  5  Port.  (Ala.) 

182,  188 

Perkins,  Thompson  v.   3  Mason, 

232,  57 

Perkins,  Watkins  v.  1  Ld.  Raym. 

224,  63 

Perkins,  WilKams  v.  21  Ark.  18,  7 

Perciful,   Anthony    v.    8   Ark.    (3 

Eng.)  494.  238,  249 

Perdue,  Branch  Bank  at  Montgom- 
ery V.  3  Ala.  409,  206 
Perley  v.  Loney,  17  Up.  Can.  Q  B, 

R.  279,  1"? 

Perley,  Ramsey  v.  34  111.  504,  209 


cxvni 


TABLE   OF   CASES. 


Section 
Peters  r,  Barnliill,  1  Hill  Law  (So. 

Car.)  237,  181,  184 

Peters,  Dougherty  r.  2  Robinson 

(La.)  5:34,  487 

Peters  r.  Linenschmidt,  58  Mo.  464,  507 
Peters,  Municipal  Council  of  Mid- 
dlesex r.  9  Up.  Can.  C.  P.  R.  205, 

348,  351 
Peters,  Purdy  v.  35  Barb.  (N.  Y.) 

239,  89 

Peters,  Roman  v.  2  Robinson  (La.) 

479.  472 

Petit,  Diamond  v.  3  La.  An.  37,  404 
Pettway,  Dawson  v.  4  Dev.  <&  Batt. 

Law  (Nor.  Car.)  396,  225 

Pettingill,  Moss  v.  3  Minn.  217, 

27,  378,  380 
Petway,   Eason  v.   1  Dev.  &  Bat. 

Law  (Nor.  Car.)  44,  82 

Petty  V.  Cooke,  Law  Rep.  6  Queen's 

Bench,  790,  290 

Pcttit,  Watts  V.  1  Bush  (Ky.)  154,  4G1 
Pej-ton's  Admr.  Morrow's  Admr. 

r.  8  Leigh.  (Va.)  54,  25 

Pfeiffer  v.  Kingsland,  25  Mo.  66,  6 
Phares  v.  Barbour,  49  111.  370,  372 
Phears,  Shepard  v.  35  Texas,  763,  82 
Phelps,  Boj-nton  v.  52  lU.  210,  413 

Phelps  V.  Garrow,  8  Paige,  Ch.  322,  62 
Philbrooks  v.  McEwen,    29    Ind. 

:M7,  389 

Phipps,  Brown  v.  6  Smedes  &  Mar. 

(Miss.)  51,  454 

Phipps,  Craig  v.  23  Miss.  240,  84 

PhUlips  V.  Astling,  2  Taunt.  206,  345 
Phillips,  Bateman  v.  15  East,  272,  67 
PhiUips  V.  Bateman,  16  East,  356,  68 
Phillips,  Bridges  r.  17  Texas,  128,  129 
Phillips,  Brinagar's  Admr.  v.  1  B. 

Men.  (Ky.)  283,  296 

Pipkia  V.  Bond,  5  Ired.   E.   (Nor. 

Car.)  91,  296 

Phillips    V.  Foxall,   Law  Rep.    7 

Queen's  B.  666,  368 

Phillips,  Gold  r.  10  Johns.  412,  53 

Phillips.  Harrison  v.  46  Mo.  520,  237 
Phillips  V.  Riley,  27  Mo.  386,  506 

Phillips  V.  Rounds,  33  Me.  357, 

308,  322,  323 


Section 
Phillips  V.  Solomon,  42  Ga.  192,  126 
Philips,     Trousdale    v.    2    Swan 

(Tenn.)  384,  521 

Phillips  V.  Wells,  2  Smeed  (Tenn.) 

154,  393 

Philips  V.  Astling,  2  Taunt.  206,  172 
Philips  V.  Shackford,  Cro.  Eliz.  455,  8 
Phoenix  Fire  Ins.  Co.  v.  Mowatt,  6 

Cow.  599,  431 

Phyfe  V.  Warden,  2  Edwards'  Ch. 

47,  352 

Physic,  Geary  v.  5  Barn.  &  Cres. 

234,  66 

Picksley,   Reuss  v.    Law    Rep.    1 

Exch.  342,  75 

Pickens  v.  Finney,  12  Smedes  & 

Mar.  (Miss.)  468,  388 

Pickens,    Kennedy  v.  3  Ired.  Eq. 

(Nor.  Car.)  147,  278 

Pickens  v.  Yearborough's  Admr. 

26  Ala.  417,  384 

Pickens,  Young  v.  45  Miss.  553,  419 
Pickett  V.  Bates,  3  La.  An.  627, 

177, 182 
Pickett  V.  Land,  2  Bailey  Law  (So. 

Car.)  608,  "  208 

Pickersgill  v.  Laliens,  15  Wallace, 

140,  80,  117 

Pickering  v.  Day,  2  Delaware  Ch. 

R.  333,  294,  478 

Pickering  v.  Day,  3  Houston  (Del.) 

474,  368,  394,  457 

Picot  V.  Signiago,  22  Mo.  587,  28 

Pico  V.  Webster,  14  Cal.  202,  530 

Pidcock  V.  Bishop,  3  Barn.  &  Cress. 

605,  366 

Pidcock  V.  Bishop'  5  Dow  &  Ry. 

505,  366 

Piercy  v.  Piercy,  1  Ired.  Eq.  (Nor. 

Car.)  214,  402 

Pierce,  Boynton  v.  79  111.  145,  147,  153 
Pierce  v.  Goldsberry,  31  Ind.  52,  307 
Pierce,  Harris  v.  6  Ind.  162,  153 

Pierce  v.  Kennedy,  5  Cal.  138,  148 

Pierce,  Swift  v.  13  Allen,  136,  64 

Pierce,  Walker  v.  21  Gratt.  (Va.) 

722,  518 

Pierce,  Watriss  v.  32  New  Hamp. 

560,  25,  209,  337 


TABLE    OF    CASES. 


CXIX 


Section 
Pierse  v.  Irvine,  1  Minn.  369,  153 

Pigon  V.   French,    1   Washington 

(U.  S.)  278,  17G 

Piggott,  Clancy  v.  4  Nev.  &  Man. 

496,  63,  68 

Pike,  Allen  v.  3  Cash.  238,  157,  159 
Pike  V.  Brown,  7  Gush.  133,  39,  58 

Pike  V.  Irwin,  1  Sandf.  (N.  Y.)  14, 

53,  60 
Pike,  Lang  v.  27  Ohio  St.  498,  79,  393 
Pike,  Mar.sh  v.  10  Paige  Ch.  R. 

595,  262 

Pike,  Marsh  v.  1  Sandford's  Ch.  R. 

210,  24 

Pike,  State  v.  74  Nor.  Car.  531,  526 
Pilgi-im  V.  Dykes,  24  Texas,  383,  325 
Pillsbuiy,    Concord    v.    33     New 

Hamp.  310,  203 

Pillans   r.   Van    Mierop,   3    Burr. 

1663.  9,  53,  68 

Pinckne3%  Lowndes  v.  2  Strob.  Eq. 

(So.  Car.)  44,  215 

Pinckney,  Lowndes  v.  1   Richard- 
son's Eq.  (So.  Car.)  155,  232 
Pinney,  Huey  v.  5  Minn.  310, 

205,  208,  352 
Pintard  v.  Davis,  1  Zabriskie  (N. 

J.)  632,  208 

Pintard  v.  Davis,  1  Spencer  (N.  J.) 

205,  208 

Pinkston  v.  Taliaferro,  9  Ala.  547,  249 
Pinkstaff  v.  People,  59  111.  148,  461 
Pipkin,  Vann  v.  77  Nor.  Car.  408,  487 
Piper  V.  Newcomer,  25  Iowa,  221,  17 
Pirkins  v.  Rudolph,  36  111.  306,  416 
Pitcher,  Chickasaw  County  v.  36 

Iowa,  593.  316 

Pittsburg,  Ft.  W.  &  C.  R.  R.  Co. 

V.  Shaeffer,  59  Pa.  St.  350,  3C9 

Pittman  v.  Chisolm,  43  Ga.  442,  84 
Pitt  V.  Purssord,  8  Mees.  &  Wels. 

538,  257 

Pitts  V.  Beckett,  13  Mees.  &  Wels. 

743,  66,  75 

Pitts  V.  Congdon,  2  New  York,  352,  53 
Pitts    V.   Fugate,  Adm'x,   41  Mo. 

405,  527 

Pitzer  V.  Harmon,  8  Blackf.  (Ind.) 

112,  181 


Section 
Plant,   Woolfolk   v.  46    Ga.  422, 

202,  298 
Planters   and  Merchants   Bank  v. 

Blair,  4  Ala.  613,  94 

Planters  Bank,  Johnson  i\  4  Smedes 

&  Mar.  (Miss.)  165,  392 

Planters   Bank  v.  Lamkin,  R.  M. 

Charlton  (Ga.)  29,  368 

Placer  County  v.  Dickerson,  45  Cal. 

12,  459,  521 

Place  V.   McVain,  38  New  York, 

96,  317 

Place  V.  Taylor,  22  Ohio  St.  317,  480 
Plaxton,  Yates  v.  3  Levinz,  235,  433 
Plazencia,    State    v.    6   Robinson 

(La.)  417,  433 

Pleasanton's  appeal,  75  Pa.  St.  344,  114 
Pledge  V.    Buss,    Johnson  (Eng. 

Ch.)  066,  348,  370 

Plimpton,    Robinson    v.  25  New 

York,  484,  401 

Plummer,  Champion  v.  1   Bos.   & 

Pul.  (N.  R.)  252,  67 

Plumer,  Eastman  v.  32  New  Hamp. 

238,  289 

Plnmmer,  Inhabitants  of  Alna  v.  4 

Greenl.  (Me.)25S,  76 

Plummer  v.  People,  16  111.  358,  434 
Plymouth  Gold  Mining  Co.   Tufts 

V.  14  Allen,  407.  66 

Poague,  Watson  v.  42  Iowa,  582,  290 
Pob,  Draper  v.  2  Spear  (So.  Car.) 

292,  75 

Pocock,  Fentum  v.  1  Marshall,  14,  156 
Pocock,  Fentum  v.  5  Taunt.  192,  156 
Poe,  Rhett  v.  2  How.  (U.  S.)  457,  172 
Pogue  V.  Joyner,  6  Ark.  (1  Eng.) 

241,  189 

Poillon  V.  Volkenning,  11  Hun  (N. 

Y.)  3S5,  524 

Polak    V.    Everett,    Law    Rep.    1 

Queen's  B.  Div.  669,  370,  373 

Pollard  V.  Louisville  C.  &  L.  R.  R. 

Co.  7  Bush  (Ky.)  597,  518 

Pollard  V.  Stanton,  5  Ala.  451.  537 

Polk,  Farmers  &  Mechanics  Bank 

V.  1  Delaware,  Ch.  R.  167,  444 

Polk  V.  Gallant,  2  Dev.  &  Bat.  Eq. 

(Nor.  Car.)  395,  204 


cxx 


TABLE   OF   CASES. 


Section 
Tolk  r.  Wisener,  2  Humph.  (Tenn.) 

520.  ^02 

Police  Jury,  Haw  v.  1  La.  (Miller) 

41,  349,  536 

Police  Jury,  Slattery  v.  2  La.  An. 

444,  B88 

Pomeroy,  Abrams  v.  13  111.  133,  107 
Poinoroy,  Dwight  v.  17  Mass.  308,  352 
Pond  r."  Clarke,  14  Ct.  334,  188 

Pope  r.  Davidson,  5  J.  J.  Marsh. 

(Ky.)400,  191 

Pope,  Martin  v.  6  Ala.  532,  28C 

Pope,   Patteison  v.  5  Dana  (Ky.) 

241,  268 

Pope's  Admr.  Lytle's  Exis.  v.  11 

B.  Mon.  (Ky.)  297,  251 

Poppenhousen  v.  Seeley,  3  Abb. 

Rep.  Om.  Cas.  615,  403 

Pooley  V.   Harradine,  7  Ell.  &  Bl. 

431,  17,  19,  328 

Pool,  Price   V.    3   Hurl.  &  Colt. 

4;J7,  369 

Pool  r.  Williams,  8  Ired.  Law  (Nor. 

Cai-.)  236,  236 

Poonuiui  V.  Goswiler,  2  Watts  (Pa.) 

69,  203 

Porter,  Arrington  v.  47  Ala.  714,  524 
Porter  v.  Hodenpuyl,  9  Mich.  11,  300 
Porter,  Miller  v.  5  Humph.  (Tenn.) 

294,  325 

Porter  i:  Stanley,  47  Me.  515,  464 

Porta^-^e  Co.  Branch  Bank  v.  Lane, 

8  Ohio  St.  405,  333 

Port  t'.  Robbins,  35  Iowa,  208,  371 
Postlewait,  Hunt  v.  28  Iowa,  427,  309 
Poslon,  Peay  v.  10  Yerg.  (Tenn.) 

Ill,  314 

Post,  Flanagan  v.  45  Vt.  246,  364 

Post,  Jones  V.  6  Cal.  102,  66,  73 

Post  V.  Robbins,  35  Iowa,  208,  352 
Postell,    Lipscomb    v.    38    Miss. 

476,  496 

Postmaster  General  v.  Munger,  2 

Paine,  189,  463,  469 

Postmaster  General,  Dox  v.  1  Pe- 
ters, 318,  474 
Pott,  Marbcrger  v.  16  Pa.  St.  9,  154 
Pott  r.  Nathan,  1  Watts  &  Serg. 

(Pa.)  155.  227 


Section 
Potius,  Bank  of  Pennsylvania  v. 

10  Watts  (Pa.)  148, 

266,  207,  320,  486 
Potter,  Besore  v.  12  Serg.  &  Rawle 

(Pa.)  154,  118 

Potter  County,  Clarke  v.  1  Pa.  St. 

159,  475 

Potter,  Moore  v.  9  Bush  (Ky.)  357,  461 
Potter  V.  State,  23  Ind.  550,  15,  444 
Potter,  State  v.  63  Mo.  212,  355 

I 'otter,    Wetherbee   v.    99    Mass. 

354,  •       38 

Pourne,  Dowbiggen  v.  2  Younge  & 

Collver  (Exchequer)  462,  270 

Powell,  Enicks  v.  2Slrobh.  Eq.  (So. 

Car.)  196,  462,  502 

Powell  V.  Kettle,   1  GHman  (111.) 

491,  118 

Powell  V.  Matthis,  4  Ired.  Law  (Nor. 

Car.)  83.  252,  255 

Powell,  McLemore  v.  12  Wheaton, 

554.  296 

Powell,  Payne  v.  14  Texas,  600,  309 
Powell,  Powell  v.  48  Cal.  234,  261 

Powell  V.  Smith,  8  Johns.  249,  183,  190 
Powell's  Exrs.  v.  AVhite,  11  Leigh 

(Va.)  309,  273 

Powder  Works,  Child  v.  44  New 

Hamp.  354,  191 

Powers  V.   Bumcratz,  12   Ohio  St. 

273,  167 

Powers,  State  v.  52  Miss.  198,  461 

Poyntz,  Morrison  v.   7  Dana  (Ky.) 

307,  252,  254 

Praed  v.  Gardiner,  2  Cox,  86,  279 

Prather,  Dobson  v.  6  Ired.  Eq.  (Nor. 

Car.)  31,  379 

Prather,  Fenslert?.  43  Ind.  119,  504 
Prather  v.   Johnson,    3    Harr.    & 

Johns.  (Md.)  487,  179 

Prather  v.  Vineyard,  4  Gilman  (lU.) 

40,  49 

Pratt,  Benton  v.  2  Wend.  385,  59 

Pratt  V.  Hedden,  121  Mass.  116,  9 

Pratt  V.  Humphrey,  22  Conn.  317,  58 
Pratt,  Taylor  v.  3  Wis.  674,  68 

Pratt  V.  Thornton,  28  Me.  355,  218 
Prendergrass,  Davey  v.  5  Barn,  & 

Aid.  187,  327 


TABLE   OF   CASES. 


CXXl 


Section 
Preble  v.  Baldwin,  6  Cusli.  549,  58 

Prentiss,  Fellows  v.  3  Denio,  512, 

135,  161 
Prentiss,  Fellows  v.  9  Denio,  512,  316 
Prentiss  v.  Garland,  64  Me.  155,  86 
Pierce  v.  Goldsberry,  35  Ind.  317,  319 
Prescott  V.  Brinsley,  6  Gush.  233,  95 
Prescott,  Cornell  v.  2  Barb.  (N.  Y.) 

16,  24 

Prescott  V.  Newell,  39  Vt.  82,  255 

Prescott,  Pelton  v.  13  Iowa,  567,      334 
Prestman,  Drummond  f .  12  Wheat- 

on,  515,  96,  97,  520 

Presslar    v.    Stallworth,    37    Ala. 

402,  272 

Preston,  Baker  v.  1  Gilmer  (Va.) 

235,  522 

Pi-eston,  Commonwealth  v.  5  T.  B. 

Mon.  (Ky.)  584,  474 

Preston  v.  Davis,   8  Ark.  (3  Eng.) 

167,  115 

Preston  v.  Henning,  6  Bush  (Ky.) 

550,  305 

Preston  v.  Preston,  4  Gratt.  (Va.) 

88,  227,  228 

Preslar,  Stallworth  v.  34  Ala.  505, 

251,  257,  259 
Preslar  v.  Stallworth,  37  Ala.  402, 

259,  529 
Pickney  v.  Aagadorn,  1   Duer  (N. 

Y.)  89,  76 

Pritchard  v.  Davis,  1  Spencer  (N. 

J.)  205,  18 

Pritchard  v.  Hitchcock,  6  Man.  & 

Gr.  151,  290 

Pritchard,  Mason  v.  12  East,  227, 

78,  133 
Price,  Alsop  v.  1  Douglass  (Eng.) 

160,  126 

Price  r.  Barker,  4  Ellis  &  Black. 

760,  329 

Price  V.  Cloud,  6  Ala.  248,        515,  522 
Price's  Esrs.  Harrison's  Exrs.  v. 

25  Gratt.  (Va.)  553,  507,  513 

Price    V.    Edmunds,    10  Bam.    & 

Cres.  578,  321 

Price  V.  Edmunds,  5  Man.  &  Ryl. 

287,  321 

Price  V.  Kennedy,  16  La.  An.  78,     536 


Section 
Price,  Parnell  v.  3  Richardson  Law 

(So.  Car.)  121,  298 

Price  V.  Pool,  3  Hurl.  &  Colt.  437,  369 
Price  V.  Richardson,  15  Mees.  & 

Wels.  539,  71 

Price,     Thigpen   v.    Phillips    Eq. 

(Nor.  Car.)  146,  192 

Price  V.  Trusdell,  28  New  Jersey, 

Eq.  (1  Stew.)  200,  65 

Price,  Warner  v.  3  Wend.  397,  223 
Prindle  v.  Pago,  21  Vt.  94,  ■   245 

Pringle,  Regina  v.  32  Up.  Can.  Q. 

B.  R.  308,  474 

Pringle  v.  Sizer,  2  Richardson,  N. 

5.  (So.  Car.)  59,  213 
Prior  V.  Williams,   3  Abb.    Rep. 

Cm.  Cas.  624,  118 

Pride,  Beckham  v.   6  Richardson 

Eq.  (So.  Car.)  78,  244 

Pride  v.  Boyce,  Rice  Eq.  (So.  Car.) 

275,  lis 

Priestner,   Wood  v.  Law  Rep.  2 

Exch.  66,  78,  131 

Prigmore,  White  v.  29  Ark.  208,  398 
Pinney  v.  Hershfield,  1  Montana, 

367,  410 

Prince,    Tenney  v.   4   Pick.    385, 

6,  68,  153 
Prince,  Smith  v.  14  Ct.  492,  188 
Pritchett  v.  People,  1  Gilman  (111.) 


ov:o. 


13 


Pritchett  v.   Wilson,    39  Pa.   St. 

421,  361 

Prout,  Lenox  v.  3  Wheaton,  520,  382 
Pj-octor,   Kyle    v.    7    Bush  (Ky.) 

493,  339 

Proctor,  White  v.  4  Taunt.  209,  76 
Protection  Ins.  Co.  v.  Davis,  5  Al- 
len, 54,  166, 173 
Propert  v.  Parker,   1  Russ.  &  My. 

625,  75 

Prosser,  Collins  v.  3  Dow.  &  Ryl. 

112,  383 

Prosser,  Collins  v.  1  Barn,  &  Ci'es. 

682,  383 

Prosser  v.  Laqueer,  4  HHl  (N.  Y.) 

420,  115 

Prosser,  Luqueer,  v.  1  Hill  (N,  Y.) 

256,  150 


CXXll 


TABLE  OF  CASES. 


Section 
Prj-or,  Allen  r.  3  A.  K.  Marsh.  (Ky.) 

30--.,  39,  53 

Prj-or  v.  Leonard,  57  Ga.  136,  109 

Piukett  r.  Bates,  4  Ala. 390,  61 

Pulliam  f.  Withers,  8  Dana  (Ky.) 

9s,  8,  832 

Pulvor,  Armitage  v.  37  New  York, 

494,  252 

Pulver,  Van  Slyck  v.  Hill  &  Denio 

(Lalor's  Sup.)  47.  50 

PunU-  V.  Peters,  35  Barb.  (N.  Y.) 

239,  89 

Purefoy  v.  Jones,   Freeman's  Ch. 

4-4.  375 

Purraont,  McCrea  v.  6  Wend.    460,  75 
Purssord,  Pitt  v.  8  Mees.  &  Wels. 

538,  257 

Purvis  t'.  Cartaphan,  73  Nor.  Car. 

575,  22 

Purvis,  Ramey  v.  38  Miss.  499,        512 
Purviance  v.   Sutherland,   2  Ohio 

St.  478,  186 

Putney,  March  v.  56  New  Hamp. 

34,  170,173 

Putnam  v.  Schuyler,  4  Hun,  166,  5,  362 
Pykc's  Admr.  v.  Clark,  3  B.  Hon. 

(Ky.)  262,  309 

Pyke  V.  Searcy,  4  Porter  (Ala.)  52, 

312,  501 
Pybus  V.  Gibb,  6  Ell.  &  Black.  902,  469 


Quackenbush,   Gadsen  v.  9  Piich. 

Law  (So.  Car.)  222,  90 

Queen  v.  Hall,  1  Up.  Can.  C.  P.  R. 

406,  142 

Queen  v.  O'Callaghan,  1  Lisli,  Eq. 

R.  439,  265 

Quick,  Sikcs  v.  7  Jones  Law  (Nor. 

Car.)  19,  180 

Quin  i;.  Hanford,  1  Hill,  82,  49,  60 
Quinn  V.  Hard,  43  Vt.  375,  35.3 

Quine  V.  Mayers,  2  Robinson  (La.) 

510,  4Q3 

Quuinipaick  Bank,  Jones  v.  29  Ct. 

'  282 

Quintard  v.  D'Wolf  34  Barb  (N 

Y.)97,  ■    43 

QuUlen  V.  Arnold,  12  Nevada  234,    407 


Section 
Quynn  r.  State,  1   Harr.  &  Johns. 
(Md.)  36,  447 


Rabaud,  D'V/olf  v.  1  Peters,  476, 

46,  60,  72 
Race,  Johns  v.  18  La.  An.  105,  426 
Rachal,  Gillet  v.  9  Robinson  (La.) 

276,  312,  345 

Radcliff,  Abeel  v.  13  Johns.  297,  66 
Radeliff,  Berg  v.  6  Johns.  Ch.  302,  118 
Radcliff,  McCaffil  v.  3  Robertson 

(N.  Y.)  445,  63 

Radford,  Loosemore  v.  9  Mees.  & 

Wels.  657,  190 

Radakissen  Mitter,  Bank  of  Ben- 
gal V.  4  Moore's  Privy  Council 

Cas.  140,  286 

Radway,  Gottsberger  v.  2  Hilton 

(N.  Y.)  342,  70 

Raev.  Rae,  6IrishCh.R.  490,  226 
Ragland  v.  Milan,  10  Ala.  618,  231 
Ragland,  Perrins  v.  5  Leigh  (Va.) 

5.52,  222 

Ragsdale,  McLane  v.  31  Miss.  701,  lt-9 
Rainey  v.  Yarborough,  2  Ired.  Eq. 

(Nor.  Car.)  249,  254 

Railton  v.  Mathews,  10  Clark  & 

Fmnelly,  934,  365 

Railway  Co.  v.  Goodwin,  3  Wels. 

Hurl.  &  Gor.  320,  343 

Railroad  Company  v.   Howard,  7 

Wall.  39-',  3 

Raikes  v.  Lee,  3  Man.  &  Gr.  452,  68 
Raikes  v.  Todd,  1  Ferry  &  Dav.  133,  71 
Raikes  v.  Todd,  8  Adol.  &  EU.  846,  71 
Rains  v.  Story,  3  Car.  &  Payne, 

130,  64 

Ralston  v.  Wood,  15  111.  159,  249,-532 
Ramey,  Allen  v.  4  Strob.  Law  (So. 

Car.)  30,  454 

Ramsay,   AUshouse  v.  6  Wharton 

(Pa.)  331,  48 

Ramsay,  Commonwealth  v.  2  Duv. 

(Ky.)  386,  4 

Ramsey  v.  Coolbaugh,    13    Iowa, 

164,  410 

Ramsey  v.  Lewis,  30  Barb.  (N.  Y.) 


403, 


235 


TABLE   OF   CASES. 


CXXlll 


Section 
Ramsey  v.  Perley,  34  111.  504,  209 

Ramey  v.  Purvis,  38  Miss.  499,  512 
Ramsey  e.  Westmoreland  Bank,  2 

Pen.  &  Watts  (Pa.)  203,  3^7 

Rany  v.  Governor,  4  Blackf.  (Ind.) 

2,  141 

Raney  v.  Baron,  Admr.  1  Fla.  327,  404 
Rankin  v.  Childs,  9  Mo.  665,  157,  159 
Rankin,    Creighton  v.  7  Clark  & 

Finnelly,  325,  474 

Rand,   Baker  v.  13  Barb.  (N.  Y.) 

152,  137 

Rand,  Hall  v.  8  Ct.  500,  136,  537 

Rand  V.  Mather,  11  Cush.  1,  38 

Randall,   Rochester  v.  105  Mass. 

295,  466 

Randall,  Watson  v.  20  Wend.  201,  48 
Randolph,  Randolph  v.  3  Randolph 

(Va.)  490,  196 

Raney,  Brush  v.  34  Ind.  416,  352 

Raney;  McCabe  v.  32  Ind.  309,  259 
Ranelagh  v.  Hayes,  1  Vernon,  189, 

82,  205 
Rankin  v.  Childs,  9  Mo.  665,  175 

Rankin  v.  Wilsey,  17  Iowa,  4G3.  285 
Ransom,    Barry  v.  12  New  York, 

462,  "  46, 226 

Ranson  v.  Sherwood,   26  Ct.  437, 

535,  537 
Ranson,  Weller  v.  34  Mo.  362,         314 
Rapp,  Ducker  v.  9  Jones  &  Spen- 
cer (N.  Y.)  235,  172,375 
Rapp,  Ducker  v.   67  New  York, 

464,  304,  308,  322 

Raper,  Evans  v.  74  Nor.  Car.  639,  121 
Rapelye  v.  Bailey,  3  Ct.  438,  161 

Rapelye  v.  Bailey,  5  Ct.  149,  134 

Rastall,  Straton  v.  2  Durn.  &  East, 

366,  389 

Rathff  V.  Trout,   6  J.   J.  Marsh. 

606,  6S 

Ratcliff  V.  Leuning,  30  Ind.  289,  120 
Ratclifte  v.  Gi-aves,  1  Vernon,  196,  117 
Rathbone,  Douglass  r.  5  Hill,  143,  168 
Rathbone  v.  Warren,    10  Johns. 

587,  210,  425 

Ravencroft,  Tarr  v.  12  Gratt.  (Va.) 

642,  251 

Rawstonef  v.  Parr.  3  Russell,  539,  117 


Section 
Rawlinson,    Williams  v.   Ryan  & 

Moody,  233,  133 

Rawlings,   Field  v.  1  Gilm.   (111.) 

581,  111 

Rawson,  Bell  v.  30  Ga.  712,  431 

Rawsou,  Butler  17.-1  Denio,  105,  116 
Rawson,  Elam  v.  21  Ga.  139,  272 

Rawson    v.    Sherwood,  26    Conn. 

437,  148 

Raymond,  Hill  v.  3  Allen,  540,  62 

Raynall,  Perham  v.  9  Moore,  566,  120 
Ray,  Bond  v.  5  Humph.  (Tenn.) 

492,  493 

Ray  V.  Brenner,  12  Kansas,  105,  392 
Ray,   Brown  v.   18    New    Hnmp. 

102,  233 

Ray,  Commonwealth  v.    3    Gray, 

441,  75 

Ray,  Wise  v.  3  Greene  (Iowa)  430,  75 
RajTier  v.  BeU,  15  Mass.  377,  440 

Rayner,  Jackson  «.  12  Johns.  291, 

49,52 
Rayner  r.  Linthorne,  2  Car.  &  Pa. 

124,  76 

Rayner,  Mussey  ».  22  Pick.  223, 

131,  157,  174 
Reaney,  State  v.  13  Md.  230,  430 

Reams,   Howell   v.  73  Nor,   Car. 

391,  269 

Reardon,  Johns  v.  11  Md.  465,  22,  198 
Keade  v.  Lowndes,  23  Beaven,  361,  26 
Reader,  v.  Kingham,  13  Com.  B. 

(J.  Scott)  N.  S!  344,  58 

Readfield  v.  Shaver,  50  Me.  36, 

294,  355 
Read,  Congdon  v.  7  Rhode  Is.  576,  136 
Read    v.    Cutts,  7    Greenl.   (Me.) 

186,  1,  172 

Read,  Gourdin  v.  8  Richardson  Law 

(So.  Car.)  230,  357 

Read,  Jones  v.  1  Humph.  (Tenn.) 


35, 


51^ 


Read  v.  McLemore,  34  Miss.  110,  349 
Read  v.  Nash,  1  Wils.  305,  43 

Read,  Watson  v.  1  Cooper's  Ch.  R. 

(Tenn.)  196,  378 

Receivers  of  N.  J.  Midland  R.  R. 

Co.  V.  Wortendyke,  27  New  Jer. 

Eq.  658,  266 


CXXIV 


TABLE   OF   CASES. 


Section 
Redinoiul,  Mayor  &  City  Council 

of  Natchitoches  f.  2S  La.   An. 

274,  93, 474 

Rediiigton,  Wiiterville  Bank  v.  52 


Me.  4Gt), 


23 


Redwyn.  Monice  v.   2  Baniardis- 

ton,  26,  178 

Reddick,  Outlaw?;.  11  Ga.  669,         193 
Rodliead  v.  Cater,  1  Starkie  12,  43 

Redman  d.  Deputy,  26  Ind.  838,       309 
Rodman,   Swire  v.    Law    Rep.    1 

Queen's  Bench,  Div.  536,  315 

Redfield  r.  Haight,  7  Ct.  31,  187 

Redfield  v.  Haight,  27  Com.  31,    30,  82 
Reed,  Dewey  v.  40  Barb.  (N.  Y.) 

16,  331 

Reed  v.  Evans,  17  Ohio,  128,     68,  170 
Reed  V.  Fish,  59  Me.  358,  137 

Reed  v.  Holcorab,  31  Conn.  360,        53 
Reed,  McNeal  v.  7  Irish  Ch.  Rep, 

251.  275 

Reed  v.  Nash,  1  Wils.  305,  40 

Reed  v.  Norris,  2  Mylne  &  Craig, 

361,  182 

Reed,  Patterson  v.  7  Watts  &  Serg. 

(Pa.)  144,  160 

Reed  v.  Sidener,  32  Ind.  373,  360 

Reed,  Sotheren  v.  4  Harns&  Johns. 

(Md.)  ,307,  270 

Reed,  White  v.  15  Conn,  457,     78,  136 
Reed,  Worcester  Bank  v.  9  Mass, 

267,  146 

Rees  t'.  Berrington,  2  Ves,  Jr,  540, 

205,  317 
Reese,  Steele  v.  6  Yerg.  (Tenn.) 

263,  462 

Rees's  Adnir.  WiUiamson's  Admr. 

r,  15  Ohio,  575,  259 

Reeves  v.  Steele,  2  Head  (Tenn.) 

^'^'  500 

Reeder,  Ohio  Life  Ins.  &  Trust  Co. 

p.  18  Ohio,  35,  284 

Rcgina  V.  Miller,  20  Up.  Can.  Q. 

B.  R.  4S5,  144 

Regina  r.  Piingle,  32  Up.  Can.  Q. 

B.  R.  308,  474 

Rcitz  V.  People,  72  111.  435,  493 

Reigart  v.  White,  52  Pa.  St.  438,        1 
Reiner,  Bamback  v.  8  Minn.  59,  '    199 


Section 
Reid  V.  Cox,  5  Blackf.  (Ind.)  312,  511 
Reid  V.  Flippen,  47  Ga.  273,  199,  296 
Reid  V.  Jackson,  1  Ala.  207,  488 

Reid,  Lock  v.  6  Up.  Can.  Q.  B.  R. 

(0.  S.)  £35,  74 

Reid  V.  Watts,  4  J.  J.  Marsh.  (Ky.) 

440,  296 

Rembert,  GrifEn  v.  2  Richardson, 

N.  S.  (So.  Car.)  410,  96,  175 

Remsen  v.  Beckmau,  25  New  York, 

552,  206 

Remsen  v.  Graves,  41  New  York, 

471,  31,  319 

Remington,     Clark    v.     11    Met. 

(Mass.)  361,  163 

Rendell,   Bowser  v.  31  Ind.  128, 

231,  332 
Reufro,  Gates  v.  7  La.  An.  569,  197 
Reno  V.  Tyson,  24  Ind.  56,  497 

Respess,  Farrow  v.   11  Ired.  Law 

(Nor.  Car.)  170,  •       84 

Respublica  r.  Gaoler  of  Philadel- 
phia, 2  Yeates  (Pa.)  263,  427 
Reusch  V.  Demass,  34  Mich.  95,        418 
Reuss   V.  Picksley,   Law    Rep.   1 

Exch.  342,  75 

Rey  V.  Simpson,  22  Howaixl  (U.  S.) 

341,  152,  153 

Reynes  v.  Zacharie's  Succession,  10 

La.  (Curry,)  127,  320 

Reynolds,   Brady  v.   13  Cal.   51, 

148,  341 
Reynolds,  Brainard  v.  36  Vt.  614,  83 
Reynolds  v.  Dechaums  24  Tex.  174,  4 
Reynolds,  Douglass  v.  7  Peters,  113, 

78,  80,  134,  157,  163,  168,  384 
Reynolds  v.  Douglass,  12  Peters, 

497,  172,  17.3,  175 

Reynolds  v.  Edney,  8  Jones'  Law 

(Nor.  Car.)  406,  173 

Reynolds,  Farmers  Bank  of  Canton 

V.  13  Ohio,  85,  390 

Reynolds,  Griffith  v.  4  Gratfc.  (Va.) 

46,  2-53 

Reynolds  v.  Hall,  1  Scam.  (111.)  35,  470 
Reynolds  v.   Han-al,   2  Strobhart 

Law  (So.  Car.)  87,  441 

Reynolds,  Hershler  v.  22  Iowa,  152,  325 
Reynolds,  Jenkins  v.  6  Moore,  86,      68 


TABLE   OF   CASES. 


CXXV 


Section 
Reynolds,  Jenkins  v.  3    Broderip 

&  Bing.  14,  68,  71 

Reynolds    v.   Magness,   2    Iredell 

Law  (Nor.  Car.)  26,  441 

Reynolds,   Sheldon  t\  14  La.  An. 

703,  350 

Reynolds  v.  Skelton,  2  Texas,  516,  181 
Reynolds,  State  v.  3  Mo.  70,  486 

Reynolds  v.  Ward,  5  Wend.  501,  307 
Reynolds  v.  Wheeler,  10  J.  Scott 

(N.  S.)  561,  225 

Reynolds,  Williams  v.   11   La.  (6 

Curry)  230,  113,  195 

Rhodius,  State  v.  37  Texas,  165,  439 
Rhinelander  v.  Barrow,  17  Johns. 

538,  295 

Rhea  v.   Gibson's  Exr.   10  Gratt. 

(Va.)  215,  335 

Rhett  V.  Poe,  2  How.  (U.  S.)  457,  172 
Rhoads  V.  Frederick,  8  Watts  (Pa.) 

448,  336 

Rhodes  v.  Hart,  51  Ga.  320,  333 

Rhoads,  Keller  v.  39  Pa.  St.  513,  199 
Rhoades,  Sherrod  v.  5  Ala.  683,  225 
Rhoadcs,  State  v.  7  Nevada,  434,  473 
Rhoades,  State  v.  6  Nevada,  352, 

443,  445,  522 
Rice's  Appeal.  79  Pa.  St.  168,  282 

Rice,  Baird  v.  1  Call.  (Va.)  18,  378 
Rice  V.  Bai-ry,  2  Cranch  C.  C.  447,  54 
Rice  V.  Carter,  11  Ired.  Nor.  Car.) 

298,  52 

Rice,  Clapp  v.  15  Gray  (Mass.)  557, 

241,  255 
Rice,  Clapp  v.  13  Gray,  403,  151,  226 
Rice  tK  Downing,  r2B.Mon.  (Ey.) 

44,  205 

Rice,  Everly  v.  20  Pa.  St.  297,  872 

Rice  V.  Filene,  6  Allen,  230,  103 

Rice,  Hayden  v.  18  Vt.  353,  226 

Rice,  Henderson  v.  1  Cold.  (Tenn.) 

223  7 

Ricef .  Kirkman,  3  Humph.  (Tenn.) 

415,  515 

Rice  V.  Morton,  19  Mo.  263,  27,  383 
Rice,  Munford  v.  6  Munf.  (Va.)  81,  141 
Ricev.  Rice,  14  B.  Mon.  (Ky.)  335,  184 
Rice  V.  Simpson,  9  Heisk.  (Tenn.) 

809,  504 


SECTIO>f 

Rice,  Smith  v.  27  Mo.  505,  27,  107,  326 
Rice  V.  Southgate,  16  Gray,  142,  177 
Rice,  Whitaker  v.  9  Minn.  13,  120 

Rich,  Brackett  v.  23  Minn.  485, 

83,  169 
Richter's  Estate,  in  re  4  Bankr. 

Reg.  222,  409 

Richter  v.  Cummings,  60  Pa.  St. 

441,  270 

Richard,  Stoppani  v.  1  Hilton  (N. 

Y.)  509,  6 

Richwine  v.  Scovill,  54  Ind.  150,  86 
Richmond  v.  Marston,  15  Ind.  134,  260 
Richmond    v.   Standclift,    14    Vt. 

258,  363 

Richards,  Bank  of  Newbury  v.  35 

Vt.  281,  94 

Richards  v.  Commonwealth,  40  Pa. 

St.  146,  392 

Richards,  Mason  v.  12  Iowa,  73,  417 
Richards  v.  Simms,  1  Dev.  &  Batt. 

Law  (Nor.  Car.)  48,  225 

Richards  v.  Storer,  114  Mass.  101,  407 
Richards,    Walker    v.     39     New 

Hamp.  259,  62,  77 

Richards,    Walker    v.     41     New 

Hamp.  388,  64 

Richai-ds  v.  Warring,   4  Abbott's 

Rep.  Omitted  Cas.  47,  150 

Richardson,  Austin r.  1  Gratt.  (Va.) 

310,  15 

Richardson,  Bradley  v.  23  Vt.  720,  57 
Richardson,  Cross  v.  30  Vt.  647,  55 
Richardson,  Cross  v.  30  Vt.  641,  50 
Richardson,  Dougherty  v.  20  Ind. 

412,  27 

Richardson,  Emery  v.  61  Me.  99,  303 
Richardson,  Florance  v.  2  La.  An. 

663,  460 

Richardson,  Hunter  v.   1    Duval  1 

(Ky.)  247,  275 

Richardson,  Mclver  v.  1  Maule  & 

Sel.  557,  162 

Richardson,  Mitchum  v.  3  Strob. 

Law  (So.  Car.)  254,  359 

Richardson,    Nelson    v.    4    Sneed 

(Tenn.)  307,  150 

Richardson,  Padkard  v.  17  Mass. 

122,  68 


CXXVl 


TABLE  OF  CASES. 


Section 
Richardson,  Price  v.  15  Mees.  & 

Wels.  539,  "^1 

Richardson,  Roberts  v.  39    Iowa, 

290,  296 

Richardson,  Sinclair  v.  12  Vt.  33,  63 
Richardson,  Vinal  v.  13  Allen,  521, 

9,172 

Ricks.  Bunting  v.   2  Dev.  &  Bat. 

Eq.  (Nor.  Car.)  130,  204 

Ricks,  Grice  v.  3  Dev.  Law  (Nor. 

Car.)  62,  •  168 

Riker,  Strong  v.  16  Vt.  554,  151,  153 
Ridgway,  Governor  v.  12  111.  14,  469 
Ridley,  Nichol  v.  5  Yerg.  (Tenn.) 

63,  66 
Ridenhour,    Hawkins    v.   13    Mo. 

125,  215 

Rider,  Exrs.  of  Dennis  v.  2  McLean, 

451,  208 

Ridsdale,    Grant   v.  2    Harris    & 

Johns.  (Md.)  186,  132 

Riddel  t'.  School  District,  15  Kan- 
sas, 168,  140 
Riddle  v.  Baker,  13  Cal.  295,  91 
Riddle  V.  Bowman,  27  New  Hamp. 

236,  178 

Riddle,  Moss  v.  5  Cranch,  351,  349 

Riddle,  Parker  v.  11  Ohio,  102,  148 
Riddle,  Roberts  v.  79  Pa.  St.  468,  86 
Riddle,  Toiirns  v.  2  Ala.  694,  383 

Riegel,   Neberroth  v.  71   Pa.   St. 

2b0,  63 

Riggs  f.  Waldo,  2  Cal.  485,  148 

Riggs,  Lewis  v.  9  Texas,  164,  503 

Riggs,  Moakley  v.  19  Johns.  69,  84 
Riley  V.  Gerrish,  9  Cush.  104,  1.53 

Riley  v.  Gregg,  16  Wis.  666,  17,  309 
Riley  r.  Johnson,  8  Ohio,  526,  353 

Riley,  IMcMullen  v.  6  Gray,  500,  38 

Riley,  Phillips  v.  27  Mo.  386,  506 

Riley,  Waters  v.  2  Harris  &  Gill 

(Md.)  305,  248 

Rindge  v.  Judson,  24  New  York, 

64,  133 
Rines,  Smith  v.  32  Me.  177,  197 
Ringgold     V.    Newkirk,    3    Ark. 

(Pike)  96,  168 

Rindskopf  p.  Doman,  28  Ohio  St, 
516,  119,  300 


Section 
Risdon,  Commonwealth  v.  8  Phila. 

(Pa.)  23.  461 

Risley  v.  Brown,  67  NewYork,  160,  117 
Ritchie,  Clark  r.  11  Grant's  Ch.  R. 

499,  350 

Ritchey,  Hollinsbee  v.  49  Ind.  261, 194 
Ritenour  v.  Mathews,  42  Ind.  7,  194 
Rittenhouse  v.  Kemp,  37  Ind.  258,  302 
Rittenhouse  v.  Levering,  6  Watts 

&  Serg.  (Pa.)  190,  267,  276 

Ritter  v.  Hamilton,  4  Texas,  325,  503 
Rives  V.  McLosky,  5  Stew.  &  Port. 

(Ala.)  3.30,  214 

Riv^s,  Winston  v.  4  Stew.  &  Port. 

(Ala.)  269,  394 

Rix,  Gibson  v.  32  Vt.  824,  289 

Roane,  Adams  v.  7  Ark.  (2  Eng.) 

360,  505 

Robb,  Boynton  v.  22  111.  525,  413 

Roby,  Smith  v.  6  Heisk.  (Tenn.) 

546,  418 

Robert,  Slocomb  v.  16  La.  (Cm-ry) 

173,  434 

Robeson  r.  Roberts,  20  Ind.  155, 

379,  382 
Robertson  v.  Coker,  11  Ala.  466,  363 
Robertson  v.  Findley,  31  Mo.  384,  7 
Robertson,   Jenkins  v.  2  Drewry, 

351,  27 

Robertson,  May  v.  13  Ala.  86,  363 

Robertson  v.  Maxcey,  6  Dana(Ky.) 

101,  '  249 

Robbins  v.  Ayres,  10  Mo.  5-38,  52 

Robbins,   Chambers    v.   28  Conn. 

544,  54 

Robbins,  Chilton  v.  4  Ala.  223,  302 
Robbins,  Glover  v.  49  Ala.  219,  331 
Robbins,  Governor  v.  7  Ala.  79,  462 
Robbins,  Post  v.  35  Iowa,  208,  352,  371 
Robinson,  Ashford  v.  8  Ired.  Law 

(Nor.  Car.)  114,  63,  68,  84,  119 

Robinson,   Boulware  v.   8  Texas, 

327,  181 

Robinson,  Broughton  v.   11   Ala. 

922,  259 

Robinson,   Cassitys  v.  8  B.  Mon. 

(Ky.)  279,  518 

Robinson,   Cathcart  v.   5    Peters, 

264  352 


TABLE   OF   CASES. 


CXXVll 


Section 
Robinson  v.  Bale,  38  Wis.  330,  318 
Robinson  v.  Garth,  6  Ala.  204,  76 

Robinson  v.  Gee,  1  Vesey,  Sr.  251, 

21,  105 
Robinson,  Hall  v.  8  Ired.  Law  (Nor. 

Car.)  56,  233 

Robinson  v.  Hodge,  117  Mass.  222,  496 
Robinson  r.   Lane,  14  Sm.  &  Mar. 

(Miss.)  161,  48 

Robinson,  Lidderdale  v.  2  Brock- 

enbrough,  159,  269 

Robinson  v.  Lyle,  10  Barb.  (N.  Y.) 

512,  226 

Robinson  v.  Miller,   2  Bush  (Ky.) 

179,  307 

Robinson,  North  v.  1  Duvall  (Ky.) 

71,  58 

Robinson  v.  Offuit,  7  T.  B.  Monroe 

(Ky.)  540,  119,  316 

Robinson   v.    Plimpton,    25    New 

York,  484,  401 

Robinson,  Rucker  v.  38  Mo.  154,  329 
Robinson  v.    Sherman,    2    Gratt. 

(Va.)  178,  406 

Robinson,  State  Btink  v.  18  Ark. 

(8  Eng.)  214,  125 

Roberts  v.  Adams,  6  Port.  (Ala.) 

361,  254 

Roberts  v.  Bane,  32  Texas,  385,  328 
Roberts,  Brown  v.  14  La.  An.  256,  312 
Roberts,  Caldwell  r.  1  Dana  (Ky.) 

355,  254 

Roberts,  Clark  v.  26  Mich.  506,  16 

Roberts  v.  Colvin,  3  Gratt.  (Va.) 

358,  296 

Roberts,  Dunning  v.  35  Barb.  (N. 

Y.)  463,  75 

Roberts,  Eddy  r.  17  111.  505,  48 

Roberts  v.  Green,  31  Ga.  421,  426 

Roberts  v.  Griswold,  35  Vt.  4C8,  9,  100 
Roberts,  Hunt  v.  45  New  York,  691,  114 
Roberts  v.  Jenkins,  19  La.  (Curry) 

453,  17 

Roberts,  Lilly  v.  58  Ga.  363,  375,  380 
Roberts  v.  Miles,  12  Mich.  297,  211 
Roberts,  Moor  v.  3  J.  Scott  (N.  S.) 

830,  112 

Roberts,  Morton  v.  4  T.  B.  Mon. 

(Ky.)  491,  316 


Section 
Roberts  v.  Richardson,  39  Iowa, 

290,  296 

Roberts  v.  Riddle,  79  Pa.  St.  468,      86 
Roberts,  Robeson  v.  20  Ind.   155, 

379,  382 
Roberts  u.  Sayre,  6T.  B.  Mon.  (Ky.) 

188,  275 

Roberts,  Simpson  v.  35  Ga,  180,       441 
Roberts  v.  Stewart,  31  Miss.  664, 

296,  298,  306,  309 
Roberts,    Thompson   v.   17    Ii-ish 

Com.  Law  Rep.  490,  146 

Roberts,  Wiley  v.  27  Mo.  388,  66 

Rockefeller,  Stone  v.  29  Ohio  St. 

625,  83 

Rockwood,   Merriam   v.  41   New 

Hamp.  81,  354 

Rockingham  Bank  v.  Claggett,  20 

New  Hamp.  292,  273 

Rock,  Thayer  v.  13  Wend.  53,  38 

Roche  V.  Chaplin,   1  Bailey  (So. 

Car.)  419,  44 

Rochester  City  Bank,   Talman  v. 

18  Barb.  123,  3 

Rochester  v.  Randall,    105  Mass. 

295,  466 

Rodgers,  Hall  v.  7  Humph.  (Tenn.) 

536,  53 

Rodgers    v.    McCluer's    Admr.    4 

Gratt.  (Va.)  81,  268 

Roddie,  Sevier  v.  51  Mo.  580,    179,  528 
Rodes  V.  Crockett,  2  Yerg.  (Tenn.) 

346,  213 

Roe  V.  Hough,  3  Salk.  14,  52 

Roe,  IngersoU  v.  65  Barb.  (N.  Y.) 

346,  5 

Rogers,   Commonwealth  v.  53  Pa. 

St.  470,  501 

Rogers,  Dickey  v.  19  Martin  (La.) 

N.  S.  588,  178,  193 

Rogers,    East    River    Bank    v.   7 

Bosw.  (N.  Y.)  493,  170 

Rogers,   Exeter  Bank    v.    7  New 

Hamp.  21,  344 

Rogers,  Hanford  v.  11  Barb.   (N. 

Y.)  18,  73 

Rogers,  Musket  v.  8  Scott,  51,  206 

Rogers,  Musket  v.  5  Bing.  (N.  C.) 

728,  206 


CXXVlll 


TABLE   OF   OASES. 


Section 
Ro:;er3  r.  School  Trustees,  46  111. 

428,  18,  209,  370 

Rogers,  Smith  v.  14  Ind.  224,  82 

Holers,  Tobias  v.  13  New  York, 

59,  240 

llogers  v.  Waters,  2  Gill  &  Johns. 

(Md.)  64,  54 

Rogers,  Wvke  v.  1  De  Gex,  Macn. 

&  Gor.  408,  318,  329 

Rolfe  V.  Lamb,  16  Vt.  514,  110 

Rolleston,  Carstairs  v.  1  Marshall, 

207,  124 

Rolt,  General  Steam    Navigation 

Co.  r.  6  J.  Scott  (N.  S.)  550,  345 
Rolston  V.  Click,  1  Stew.  (Ala.)  526,  10 
Roman  v.  Peters,  2  Robinson  (La.) 

479,  472 

Romeyn,  Draper  v.  18  Barb.  (N. 

Y.)  166,  296 

Root,   Amherst  Bank  v.    2  Met. 

(Mass.)  522,  144,  369,  474,  479,  519 
Root,  Colt  V.  17  Mass.  229,  58 

Root  V.  Dill,  38  Ind.  169,  507 

Rook,  Lee  v.  Mosely,  318,  205 

Roots  V.  McCarty,  21  Howard  (U. 

S.)  4.32,  225 

Roper,  Garnett  v.  10  Ala.  842,  120 

Rorke,  Rowland  v.  4  Jones  (Nor. 

Car.)  337,  53 

Rose's  Exi-s.  Watson  v.  Ala.  292,  284 
Rosenthal,  Bailey  v.  56  Mo.  385,  400 
Rosenbaum  v.  Gunter,   2    E.   D. 

Smith  (N.  Y.)  415,  68 

Rose,  Hillary  v.  9  Phila.  (Pa.)  139,  84 
Rose  V.  Madden,  1  Kansas,  445,  17,  517 
Rose,  Tillotson  v.  11  Met.  (Mass.) 

299,  176 

Rose  V.  WilUams,  5  Kansas,  483, 

17,  305 
Ross  V.  Burton,  4  Up.  Can.  Q.  B. 

R.  357,  131 

Ross,  Chapman  v.  12  Leigh  (Va.) 

565,  46 

Ross  V.  Clore,  3  Dana  (Ky.)  189,  200 
Ross,  Commissioners  of  Berks  Co. 

V.  3  Binney  (Pa.)  520,  377 

Ross,  Devers  v.  10  Gratt.  (Va.)  252,  327 
Ross  V.  Jones,  22  Wallace,  576, ;  603 
Ross,  Salyers  v.  15  Ind.  130,  224 


Section 
Ross,  Taylor  v.  3  Yerg.  (Tenn.) 

330,  68,  170 

Ross,  Teaff  v.  1  Ohio  St.  469,  389 

Ross  V.  Wilson,  7  Smedes  &  Mar. 

(Miss.)  753,  282 

Ross  r.  Woodville,  4  Munf.  (Va.) 

324,  359 

Roth  V.  Miller,  15  Serg.  &  Rawle, 

100,  [48 

Rounds,   Phillips  v.  33  Me.  357, 

308,  322,  323 
Routon's  Admr.  v.  Lacy,    17  Mo. 

399,  504, 512 

Rowe,  Besshears  v.  46' Mo.  501,  9 

Rowe  V.  Buchtel,  13  Ind.  381,  506 

Rowe,  Cross  v.  22  New  Hamp.  77,     94 
Rowe,  Ogden  v.  3  E.  D.  Smith  (N. 

Y.)  312,  339 

Rowe  V.  Whittier,  21  Me.  545,  52 

Rowney,  Ardern  v.  5  Esp.  254,  53 

Rowland  v.  Rorke,  4  Jones  (Nor. 

Car,)  337,  53 

Rowan    v.  Sharp's   Rifle    Co.  33 

Conn.  1,  21,  338 

Rowley,  Hosea  v.  57  Mo.  357,  305 

Rowley  Laval  v.  17  Ind.  36,  272 

Rowlett  V.  Ewbank,  1  Bush  (Ky.) 

477,  8 

Royal  Ins.  Co.  v.  Davies,  40  Iowa, 

469,  113 

Royal  Canadian  Bank  v.  Payne,  19 

Grant's  Ch.  R.  180,  21,  97 

Royce,  McVicar  v.  17  Up.  Can.  Q. 

B.  R.  529,  181 

Roye,    Kimball  v.    9    Richardson 

Law  (So.  Car.)  295,  87 

Royston  v.  Howie,  15  Ala.  309,         382 
Ruan,  Mahaska  County  i\  45,  Iowa, 

328,  478 

Ruble  V.   Norman,  7  Bush   (Ky.) 

582,  289 

Rucker  v.  Cammeyer,  1  Esp.  105,       76 
Rucker,  Frost  v.  4  Humph.  (Tenn.) 

57,  515 

Rucker  v.  Robinson,  38  Mo.  154,      329 
Rucker,  State  v.  59  Mo.  17,  498 

Rucks  v.  Taylor,   49  Miss.  552, 

190,  199 
RuddeU  v.  Childress,  31  Ark.  511,    504 


TABLE   OF   CASES. 


CXXl.^ 


Section 
Rudhall,  Smith  v.  3  Foster  &  Fin. 

143,  63 

Rudolf,  Mercliants  Bank  v.  5  Ne- 
braska, 527,  218 
Rudolph,  Firkins  v.  36  111.  306,       416 
Rollins,  F'cemans  Bank  v.  13  Me. 

202,  305 

Rudd,  Laul)  v.  37  Iowa,  617,  94 

Rudd,  Schoolfield's  Admr.  v.  9  B. 

Men.  (Ky.)  291,  278 

Rudy,  Bank  of  Hopkinsville  v.  2 

Bush  (Ky.)  326,  2C8 

Rudy  r.  Wolf,  16  Serg.  &  Rawlc, 

(Pa.)  79,  84,  85 

Rue,  Hibbs  v.  4  Pa.  St.  348,      109,  330 
Ruggles,  Coggeshall  v.  62  111.  401, 

109,  182 
Ruggles  v.  Holden,  3  Wend.  216,  206 
Ruggin's    Exrs.    of,    Brown   v.   3 

Kelly,  (Ga.)  405,  27 

Rumsey,  Smith  v.  33  Mich.  183, 

255,  269 
Runde,  Runde  v.  59  111.  98,  49,  53 

Rupert  V.  Grant,  6  Smedes  &  Mar. 

(Miss.)  433,  298 

Rupp  V.  Over,   3  Brewster  (Pa.) 

133,  200 

Russ,  Hale  v.  1  Grecnl.  (Me.)  334,    440 
Rusbforth,  ex  ixirte,  10  Vesey,  409 

205,  265,  266 
Rush  V.  State,  20  Ind.  432,  82,  281 
Russell  V.  Annable,  109  Mass.  72,  127 
Russell    V.   Ballard,    16    B.   Mon. 

(Ky.)  201,  95 

Russell  V.  Clark's  Exr.  7  Cranch, 

69,  59,  78 

Russell,    Dillon    v.    5    Nebraska, 

484,  296 

Russell  V.  Failor,  1  Ohio  St.  327,      232 
Russell  V.  La  Roque,  11  Ala.  352, 

120,  191 
Russell  f.  La  Roque,  13  Ala.  149,  285 
RusseU,    Montgomery    v.    10  La. 

(Curry)  330,  184 

Russell  V.  Moseley,  3  Brod.  &  Bing. 

211,  9, 70 

Russell,  People  v.  4  Wend.  570,        474 
Russell,     Shubrick's     Exrs.    v.    1 

Dessaussure  (So.  Car.)  315,  319 


Sectiom 

Russell,  TeaguG  v.  2  Stow.  (Ala.) 
420,  211 

Russell,  Western  v.  3  Vcsoy  &  Bea. 
187,  CO,  75 

Russell  V.  Wiggins,  2  Story  Rep. 
214,  07 

Russell,  Wright  v.  2  W.   Black- 
stone,  934,  99 

Rutledge,    Allison    v.     5     Yerg. 
(Tenn.)  193,  97 

Rutherford,  Admr.  Burton    v.  49 
Mo.  255,  199 

Ryan  v.  Shawneetown,  14  lU.  20, 

21,  337 

Ryde  V.  Curtis,  8  Dow.  &  Ry.  62,       70 

Ryde,  Jones  v.  5  Taunt.  488,  16 


Sabin  v.  Harris,  12  Iowa,  87,  172 

Sacramento  Co.  v.  Bu-d,  31  Cal.  66,  472 
Sacramento  v.  Kirk,  7  Cal.  419,  336 
Sackrider,  Brady  r.   1   Sandf.  (N. 

Y.)  514,  02 

Sadler  v.  Hawkes,  1  Roll.  Abr.  27, 

pi.  49,  8 

Satfold,  Scott  V.  37  Ga.  384,  305,  309 
SaQbld  V.  Wade's  Exr.  61  Ala.  214,  282 
Sage,  Stocking  v.  1  Conn.  519,  46 

Sage  V.  Strong,  40  Wis.  575,  346 

Sage  V.  Wilcox,  6  Conn.  81, 

8,  39,  68,  168 
Sager,  Evers  v.  28  Mich.  47,  397 

Sailly  V.  Elmore,  2  Paige  Ch.  R. 

497,  209,  290 

Saint  V.  Ledyard,  14  Ala.  244,  277 

Sailor,  Daviess  Co.  Sav.  Ass'n  v. 

63  Mo.  24,  218 

Sale  V.  Darragh,  2  Hilton  (N.  Y.) 

184,  67 

Saleski,  Callahan  v.  29  Ark.  216,  398 
Salkeld    v.  Abbott,    Hayes  (Irish) 

576,  273 

Salts,  Maxwell  v.  4  Cold.  (Tenn.) 

293,  422 

Salter's  Creditors,  Salter  v.  6  Bush 

(Ky.)624,  270 

Salmond,  Sargent  v.  27  Me.  539,  258 
Salyers  v.  Ross,  15  Ind.  130,  224 

Salisbury  v.  Hale.  12  Pick.  416,         173 


cxxx 


TABLE   OF   CASES. 


Section 
Saltenberry  v.   Loucks,  8  La.  An. 

95,  451 

Salem  Manf.  Co.  v.  Brower,  4  Jones 

Law  (Nor.  Car.)  429,  173 

Salmon,  Clagett  v.  5  Gill  &  Johns. 

(Md.)  314,  329,  837 

Salmon  v.  Clagett,  3  Bland's  Ch. 

R.  (Md.)  125,  329 

Salmon  Falls  Ins.  Co.  v.  Goddard, 

14  How.  (U.  S.)  447,  75,  76 

Salmon  Falls  Mtmf.  Co.  v.  Goddard, 

14  How.  (U.  S.)  446,  66 

Sample  v.  Davis,  4  Greene  (Iowa) 

117,  483 

Sample  v.  Martin,  46  Ind.  226,  154 
Sampson  v.  Barnard,  98  Mass.  359,  336 
Sampson  v.  Hobart,  28  Vt.  697,  50 
Samuel  v.  Withers,  16  Mo.  532,  363 
Samuel  v.   Zachery,  4  Ired.   Law 

(Nor.  Car.)  377,  252 

Samuell  v.  Howarth,  3  Merivale, 

272,  209,  297 

Sanborn  v.  FJagler,  9  Allen,  474,  75 
Sanborn,  Gookin  v.  3  New  Hamp. 

491,  496 

Sanborn,  Neelson  v.  2  New  Hamp. 

414,  68 

Sands,  Wayne  v.  Freem.  351,  5 

Sanders   v.   Beau,   Busbee's  Law 

(Nor.  Car.)  318,  4^7 

Sanders,  Buck  v.  1  Dana  (Ky.)  187,  204 
Sanders  v.  Clason,  13  Minn.  379,  52 
Sanders  v.  Etcherson,  36  Ga.  404,  165 
Sanders,  Irwin  v.  5  Yerg.  (Tenn.) 

287,  397 

Sanders,  Thompson  v.  4  Dev.   & 

Bat.  Law  (Nor.  Car.)  404,  230 

Sanders  r.  Watson,  14  Ala.  198,  280 
Sanderson  v.  Aston,  Law  Rep.  8 

Exch.  73,  347,  368 

Sanderson  v.  Jackson,   2  Bos.   & 

Pul.  238,   ,  66 

Sanderson  v.  Stevens,   116  Mass. 

133,  440 

Sandilands  v.  Marsh,  2  Barn.   & 

Aid.  673,  10 

Sans  V.  People,  3  Gilman  (111.)  .327,  438 
Sanford,  McNeil  v.  3  B.  Mon.  (Ky.) 

11.  223 


Section 
Sanford?;.  Norton,  14 Vt.  228,  151, 153 
Sargent  v.  Salmond,  27  Me.  539,  258 
Sasscer  v.  Young,  6  Gill  &  Johns. 

(Md.)  243,  380 

Saunders,  Beeker  v.  6  Ired.  Law 

(Nor.  Car.)  380,  85 

Saunders,  O'Bannon  v.  24  Gratt. 

(Va.)  138,  485 

Saunders,  Perry  v.  36  Iowa,  427,      375 
Saunders  v.  Wakefield,  4  Bam.  & 

Aid.  595,  6,  68 

Saunderson  v.  Jackson,  2  Bos.  & 

Pul.  238,  66,  75 

Saunderson  v.  Jackson,  3  Esp.  180, 

66,  75 
Saulet  V.  Trepagnier,  2  La.  An. 

427,  387 

Savage's  Admr.  v.  Carleton,  33  Ala. 

443,  504 

Savage,  Doughty  v.  28  Ct.  146, 350,  366 
Savage,  Leavitt  r.  16  Me.  72,  327 

Savage,  Taylor  v.  12  Mass.  98,   46,  231 
Savage,    AVilder    v.   1    Story,    22 

163,  167,  173 
Savery,  McLott  v.  11  Iowa,  323,  115 
Savings  Bank,  Homer  v.  7  Ct.  478,  284 
Savory,  Carkint-.  14  Gray,  528,  102,  312 
Sawtel,  Harrison  v.  10  Johns.  242,  46 
Sawyer  v.  Bradford,  6  Ala.  572,  382 
Sawyer  v.  Fernald,  59  Me.  500,  9 

Sawj-er,  Miller  v.  30  Vt.  412,  328 

Sawyer,  Weare  v.  44  New  Hamp. 

198,  124,  352 

Sawyers  v.  Hicks,  6  Watts  (Pa.) 

76,  326,  470 

Sawyer's  Admr.   v.  Patterson,  11 

Ala.  523,  382 

Saxton,  Bissell  v.  66  New  York,  55, 

466,  522 
Saylors  v.  Saylors,  3  Heisk.  (Tenn.) 

525,  192,  282 

Sayre,  Roberts  v.   6  T.   B.  Mon. 

(Ky.)  188,  275 

Sayward,  Smith  v.  5  Greenl.  (Me.) 

504,  46,  50 

Scanland,    Jones    r.     6    Humph. 

(Tenn.)  195,  445 

Scanland  v.  Settle,  1  Meigs  (Tenn.) 

169,  261,  320 


TABLE   OF   CASES. 


cxxxi 


Section 
Scraff,  Allen  v.  1  Hilton  (N.  Y.) 

209,  62 

Schock  V.  Miller,  10  Pa.  St.  401,      383 
Schoonmaker,    Stockbridge  v.   45 

Barb.  (N.  T.)  100,  111 

Scheid  v.  Leibshultz,  51  Ind.  38,        15 
Schuyler,  Putnam  v.  4  Hun,  166  5 

Schaffer,  Silmeyer  v.  60  111.  479,       309 
Schmaelter,    Schmidt    c.    45  Mo. 

502,  151 

Schnitter,  SmaiT  v.  38  Mo.  478,        317 
Schultz  V.  Carter,  Speer's  Eq.  (So. 

Car.)  533,  273 

Schroeppell  v.  Shaw,  3  New  York, 

446,  209,  390 

Schwaebe,  Hoffmann  v.  33  Barb. 

(N.  Y.)  194,  217 

Schuler,  Breese  v.  48  HI.  329,  203 

Scherster   v.   Weissman,   63  Mo. 

552,  472 

Schloss  V.  White,  16  Cal.  65,  483 

Schnitzell,  Clay  v.    5  Phila.  (Pa.) 

441,  227 

Schnitzell's  Appeal,  49  Pa.  St.         227 
Schuyler,  Putnam  v.  4  Hun  (N.  Y.) 

166,  362 

Schuyler,  People  v.  5  Barb.  (N.  Y.) 

166,  484 

Scholefield,  Lawrie  v.  Law  Rep.  4 

Com.  PL  622,  133 

Scholefield  v.  Templer,  Johns.  (Eng. 

Ch.  1)  155,  124 

Scholefield  v.  Templer,  4  DeGex& 

Jones  429,  124 

Schoolfield's  Admr.  v.   Rudd,  9  B. 

Mon.  (Ky.)  291,  278 

Schofield  V.  Hustis,  9  Hun,  157,        497 
SchoGeld,  Kenworthy  v.  2  Barn.  & 

Cres.  945,  76 

Schnell,  Wilson   Sewing  Machine 

Co.  V.  20  Minn.  40,  66,  73 

Schneider  v.  Non-is,  2  Maule  &  Sel. 

286,  66,  75 

Schmidt  V.  Coulter,  6  Minn.  492,      236 
Schmidt  v.  Schmaelter,  45  Mo.  502,  151 
School  District,  Riddel  v.  lb  Kan- 
sas, 168,  140 
School  Directors,  Grim  v.  51  Pa.  St. 

219,  357 


Section 
School  Trustees,  Rogers  v.  46  111. 

428,  18,  209,  370 

Scovill,  Richwine  v.  54  Ind.  150,  86 
Scoville,  Alger  v.  1  Gray,  391,  50,  58 
Scott  V.  Bailey,  23  Mo.  140,  18 

Scott  V.  Bradford,  5  Port.  (Ala.) 

443,  506 

Scott  V.  Dewees,  2  Texas,  153,  510 

Scott  V.   Featherston,   5  La.  An. 

306,  261 

Scott,  Fuller  v.  8  Kansas,  25, 

8,  10,  74,  147,  173 
Scott  V.  Hall,    6  B.   Mon.   (Ky.) 

285,  309 

Scott  V.  Harris,  76  Nor.  Car.  205,  309 
Scott,  Janes  v.  59  Pa.  St.  178,  82,  84 
Scott,  Kleiser  v.  6  Dana  (Ky.)  137,  280 
Scott,  Leckie  v.  10  La.  (5  Cuny)  412, 11 
Scott,  Macrory  v.  5  Wels.  Hurl.  & 

Gor.  907,  54,  56 

Scott,  Mackenzie  v.  6  Bro.  Pari. 

Cas.  280,  57 

Scott,  McConnell  v.  15  Ohio,  401,  204 
Scott,  McGehee  v.  15  Ga.  74,  492 

Scott,  Mullen  v.  9  La.  An.  173,  530 
Scott  V.  Nichols,  27  Miss.  94,  199 

Scott  V.  Saffold,  37  Ga.  384,  305,  309 
Scott  V.  State,  46  Ind.  203,  453 

Scott,  State  v.  20  Iowa,  63,  428,  430 
Scott,  Stow  V.  6  Car.  &  Payne,  241,  64 
Scott  V.  Thomas,  1  Scam.  (111.)  58,  50 
Scott,   Woodbridge  v.  3  Brevard, 

(So.  Car.)  193,  191 

Scroggins  c.  Holland,  16  Mo.  419,  359 
Screws  v.  Watson,  48  Ala.  623,  423 
Scudder,  Barker  v.  56  Mo.  272,  53,  169 
Scudder,  Menard  v.  7  La.  An.  385, 

113,  131,  157,  175 
Scully,  Hiltz  V.  1  Cine.  554,  ^  63 

Scully  V.  Kirkpatrick,   79  Pa.  St. 

324,  428 

Sculthorpe,  Mines  v.  2  C3,mp.  215,  77 
Seabury  v.  Hungerford,  2  Hill,  80,  150 
Seaman  v.  Drake,  1  Caines,  Rep.  9,  126 
Seawell  v.  Cohn,  2  Nevada,  308,  323 
Searles,  Wolleshlare  v.  45  Pa.  St. 

45,  207 

Seals,     Bailey    v,     1    Harrington 

(Del.)  367,  429 


cixxii 


TABLE    OF    CASES. 


Section 
Sears,  Aga-wam  Bank  v.  4  Gray, 

95,  333 

Bears  r.  Brink,  3  Johns.  210,  68 

Sears  r.  Bearsh,  7  La.  An.  539,        404 
Sears  v.  Van  Dusen,  25  Mich.  351, 

351,  295 

Seaver  r.  Bradley,  6  Greenl.  (Me.) 

60,  174 

Seaver,  Hayes  v.  7  Greenl.  (Me.) 

237,  »  496 

Seaver  v.  Young,  16  Vt.  658,  213 

Seacord  v.  Morgan,  3  Keyes  (N. 

T.)  636,  393 

Seacord  v.  Morgan,  4  Abb.  Rep. 

Om.  Gas.  172,  393 

Searcy,  Johnson  v.  4  Yerg.  (Tenn.) 

182,  296 

Searcy,  Pyke  v.  4  Porter  (Ala.)  52, 

312,  501 
Searcy,  Thomson  r.  6  Port.  (Ala.) 

393,  494 

Sebastian    v.  Johnson,  2    Duvall 

(Ky.)  101,  13 

Second  National  Bank  v.  Gaylord, 

34  Iowa,  246,  173 

Sedgwick,  Amicable  ]\Iutual  Life 

Ins.  Co.  r.  110  Mass.  163,      341,  344 
Seely,  Bonney  v.   2  Wend.  481 

181,  182,  187 
Seely  v.  People,  27  lU.  173,  358 

Seeley  v.  Brown,  14  Pick.  177,  435 

Seeley,  Campau  v.  30  Mich.  57,        425 
Seeley,   Poppenhousen  v.  3  Abb. 

Rep.  Om.  Cas.  615,  403 

Seitz,  Fulmer  v.  68  Pa.  St.  237,        331 
Seibert  v.  Thompson,  8  Kansas,  65, 

233,  282 
Seibert  v.  True,  8  Kansas,  52,  282 

Seibrecht,  Clapp  r.  11  La.  An.  528,  405 
Selby,  Sel\)y  v.  3  Merivale,  2,  75 

Selman,  Justices  v.  6  Ga.  432,  394,  493 
Sellers,  Batturs  v.  5  HaiT.  &  Johns. 

(Md.)  117,  ■  76 

Sellers  v.  Jones,  22  Pa.  St.  423,        384 
Selser  v.  Brock,   3  Ohio  St.  302, 

331,  358 
Semple  r.  Atkinson,  64  Mo.  504,  317 
Semp'e,   Danforth    v.    7    Chicago 

Legal  News,  2C3,  309 


Section 
Semple,  Uhler  v.  5  C.  E.  Green  (N. 

J.)  288,  188 

Semmes,  Bums  vA  Cranch  Cir.  Ct. 

702,  157 

Seton  V.  Slade,  7  Vesey,  265,  75 

Settle,    Scanland  v.  Meigs  (Tenn.) 

169,  261, 320 

Sevier  r.  Roddie,  51  Mo.  580,  179,  528 
Sewall  V.  Fitch,  8  Cowen,  215,  76 

Sewell,  Hill  r.  27  Ark.  15,  388,  486 
Sewall,  Lee  v.  2  La.  An.  940,  317 

Sewall,  Wright  v.  9  Robinson  (La.) 

128,  106 

Seymour,  Harrison  v.  Law  Rep.  1 

Com.  PI.  518,  346 

Se3Tiiour,  Morgan  v.  1  Reports  in 

Chancery  120,  263 

Seymour  v.   Mickey,   15  Ohio  St. 

515,  148,  153 

Seymour,  Stone  v.  15  Wend.  19,  294 
Seymour,  Welch  r.  28  Ct.  387,  119,  139 
ShanMin,   Patton  v.   14  B.  Mon. 

(Ky.)  13,  333 

Shain,  Bragg  v.  49  Cal.  131,  345 

Shane  r.  Francis,  30  Ind.  92,  487 

Shanks,  Jasper  County  v.  61  Mo. 

332,  513 

Shackleford,     Weatherby    v.     37 

Miss.  559,  412 

Shackford,  Phillips  v.    Cro.  Eliz. 

455,  8 

Sliarman  v.  Brandt,  40  Law  Jour. 

(N.  S.)  312,  76 

Shaeffer,  Pittsburg,  Ft.  W.   &  C. 

R.  R.  Co.  r.  59  Pa.  St.  350,  369 

Sharpe  v.  Speckenagle,  3  Serg.  & 

Rawle  (Pa.)  463,  126 

Shannon  v.  McMullin,  25    Gratt. 

(Va.)  211,  378 

Sharp's    Rifle   Co.  Rowan   v.    33 

Conn.  1,  21,  338 

Shaii5,  Ashby  v.    1    LitteU    (Ky.) 

156,  394 

Sharp  V.  Bedell,  5  Gilman  (III.)  88,  393 
Sharp  V.  Fagan,  3  Sneed  (Tenn.) 

541,  306 

Sharp,  Gage  v.  24  Iowa,  15,  354 

Sharp,  Spring  Hill  Mining  Co.  v.  3 

Pugsley  (New  Biuns.)  603,  476 


TABLE    OF   CASES. 


CXXXlll 


Section 
Sharp  V.  United  States,   4  Watts 

(Pa.)  21,  357,  442 

Shaver  v.  Allison,  11  Grant's  Ch. 

R.  355,  345 

Shaver,  Readfield  v.  50  Me.  36,  294,  355 
Shawneetown,  Ryan  v.  14  lU.  20, 

21,  837 
Shaw,  Bashford  v.  4  Ohio  St.  264, 

85,  173 
Shaw  V.  Binkhard,  10  Ind.  227,  310 
Shaw,  Caton  v.  2  Harris  &   Gill 

(Md.)  13,  165 

Shaw,  Grant  r.  16  Mass.  341,  53 

Shaw,    Hodgson    v.   3    Mylne    & 

Keen,  183,  273,  279 

Shaw,  Kerr  r.  13  Johns.  236,  68 

Shaw  V.  Loud,  12  Mass.  447,  184 

Shaw  V.  McFarlane,  1  Ired.  Law 

(Nor.  Car.)  216,  370 

Shaw,  Schroepell  v.  3  New  York, 

446,  209,  390 

Shaw,  Sherburne  v.  1  New  Hamp. 

157,  67 

Shaw  V.  The  First  Associated  Re- 
formed Presbyterian  Church,  39 

Pa.  St.  226,  316 

Shaw  j;.  Vandusen,  5  Up.  Can.  Q. 

B.  R.  353,  98 

Shaw  V.  Woodcock,  7  Barn.  &  Ores. 

73,  38 

Sheffield,  Bothwell  v.  8  Ga.  569,       488 
Shehan  th  Hampton,  8  Ala.   942, 

504,  517 
Sheid  V.  Stamps,  2  Sneed  (Tenn.) 

172,  67 

Shelby,  Crowdus  v.  6  J.  J.  Marsh. 

(Ky.)6I,  178 

Shelby, Governors.  2  Blackf.  (Ind.) 

26,  530, 532 

Shelby  v.  Governor,  2  Blackf.  (Ind.) 

'289,  518 

Shelden,  Cady  v.  38  Barb.  (N.  Y.) 

103,  82, 83 

Shelden,  Smith  v.  35    Mich.  942, 

1,  19,  23 
Sheldon  v.  Reynolds,  14  La.  An. 

703,  350 

Shelton  V.  Farmer,  9  Bush  (Ky.) 

314,  241 


Section 
Shelton  v.  Hurd,  7  Rhode  Is.  403, 

27,  209 
Shelton,  Weimar  v.  7  Mo.  237,  202 
Shewell  v  Knox,  1  Dev.  Law  (Nor. 

Car.)  404,  157 

Sherley,  Farmers  &  Drovers  Bank 

V.  12  Bush  (Ky.)  304,  265 

Sherbert,  Mt.  Olivet  Cemetery  Co. 

V.  2  Head  (Tenn.)  116,  52 

Sherburne  v.  Shaw,  1  New  Hamp. 

157,  67 

Sherill,  Benedict  v.  Lalor's  Sup. 

to  Hill  &  Denio,  219,  96 

Sherrell  v.   Goodrum,   3  Humph. 

(Tenn.)  419,  400 

Sheriy  v.  State  Bank,  6  Ind.  397,  893 
Sherraden    v.    Parker,    24    Iowa, 

28,  886 

Shekan,   Martin    v.    2    Colorado, 

614,  206 

Sherrod  v.  Rhodes,  5  Ala.  683,  225 
Sherrod  v.  Woodard,  4  Devereux 

Law  (Nor.  Car.)  360,  259 

Sherman  v.  Black,  49  Vt.  198,  2:30 

Sherman,  Hill  v.  15  Iowa,  365,  504 
Sherman,  Robinson  v.  2  Gratt.  (Va.) 

178,  406 

Sherman  v.  State,  4  Kan.  570,  4,  436 
Sherman,  Walker  v.  11  Met.  (Mass.) 

170,  8 

Shemian,  Woods  v.  71  Pa.  St.  100,  85 
Shepard,  Johnson  v.  35  Mich.  115,  83 
Shepard,  Loveland  v.  2  HiU  (N.Y.) 

139,  84 

Shepard  v.   Ogden,  2  Scam.  (111.) 

257,  199 

Shepard  v.  Pebbles,  38  Wis.  373,  533 
Shepard  v.  Phears,  35  Texas,  763,  82 
Shepard  v.  Taylor,  35  Texas,  774,  108 
Shepherd,  Brooks  v.  4  Bibb  (Ky.) 

572,  421 

Shepherd,  Wise  v.  13  111.  41,  276 

Sherwood  v.   Collier,  3  Dev.  Law, 

(Nor.  Car.)  380,  270 

Sherwood,  Dart  r.  7  Wis.  523,  115 

Sherwood,  Hull  v.  59  Mo.  172,  243 

Sherwood,  Lyman  v.  20  Vt.  42,  94 

Sherwood,  Ranson  v.  26  Ct.  437, 

148,  535,  537 


CXXXIV 


TABLE   OF    CASES. 


Section 
Sherwood  r.  Stone,  14  New  York, 

267,  ''7 

Shields,  Barrow  v.  13  La.  An.  57,  370 
Shields,  Davis  v.  26  Wend.  354,  75 
Shields,  Davis  v.  24  Wend.  322,  75 
Shields  v.  Middleton,  2  Cranch,  C. 

C.  205,  53 

Shields  v.  Smith,  8  Bush  (Ky.)  601,  500 
Shirley,  People  v.  18  Cal.  121,  439 

Shirley,  Shirley  v.  7  Blackf.  (Ind.) 

452,  75 

Shine,   Central  Savings  Bank  v. 

48  Mo.  456,  160 

Shinn  «.-Budd,  1  McCarter,  (N.J.) 

234,  260 

Shippen's  Admr.  v.  Clapp,  36  Pa. 

St.  89,  884 

Shimer   v.   Hightshue,   7    Blackf. 


(Ind.)  238, 


39,; 


Shimer  v.  Jones,  47  Pa.  St.  268,  207 
Shipherd,  Backus  r.  11  Wend.  629,  85 
ShofFner    v.    Pogieman,    Winston 

Law  &  Eq.  (No.  Car.)  12,  276 

Shower,  Coldham  v.  3  Man.  Gr.  & 

Scott,  312,  73 

Shorter,  Jones  v.  1  Kelly  (Ga.)294,  46 
Shores,  Forest  i;.  11   La.    (Curry) 

416,  176 

Shortrede  v.  Cheek,  1  Add.  &  Ell. 

57,  70,  72 

Shook  V.  People,  39  111.  443,  430 

Shook  V.  Vanmater,  22  Wis.  507, 

46,  50 
Shriver  v.  Lovejoy,  32  Cal.  574,  17 

Shryock,   Weaver    v.  6    Serg.    & 

Rawle,  (Pa.)  262,  117 

Shrempp,  Heath  v.  22  La.  An.  167,  487 
Shrout,  Hutchcralt  v.  1  T.  B.  Mon. 

(Ky.)  206,  461,  491 

Shubrick's  Exrs.  v.  Russell,  1  Des- 

saussure  (So.  Car.)  315,  319 

Skip  r.  Edwards,  9  Mod.  4-38,  346 

Shupe  r.  Galbraith,  32  Pa.  St.  10,  8 
Shumway,  Brookins  v.  18  Wis.  98,  312 
Shuttleworth,  Watts  v.  5  Hurl.  & 

Nor.  235,  352,  373,  387 

Skidmore,  People  v.  17  Cal.  260,  280 
Skidmore  t'.  Taylor,  29  Cal.  619,  235 
Skofield  V.  Haley,  22  Me.  164,  173 


Section 
Skiff  t).  Cross,  21  Iowa,  459,  277 

Skillett  V.  Fletcher,   Law  Rep.  2 

Com.  PI.  469,  346 

Skillett  V.'  Fletcher,    Law  Rep.  1 

Com.  PI.  217,  346 

Skelton,  Reynolds  v.  2  Texas,  516,  181 
Skeen,  City  of  Indianapolis  v.  17 

Ind.  628,  104 

Skinner,  Cleveland  v.  56  111.  500,  440 
Skinner  v.  Conant,  2  Vt.  453,  63 

Skinner,  Whittle  v.  23  Vt.  531,  306 
Skillen,   Brobst    v.    16    Ohio    St. 

382,  458 

Skill  em,     Jenkins    v.    5    Yerger 

(Tenn.)  288,  404 

Skillin  V.  Merrill,  16  Mass.  40.  241 
Si Gordon  v.    2  McCord  Ch. 

(So.  Car.)  151,  76 

Sibberns,  Mayor  of  New  York  v. 

3  Abbot's  Rep.  Cm.  Cas.  266,       469 
Sibley      v.    McAlhster,     8    New 

Hamp.  389,  392 

Sickles,  City  of  St.  Louis  v.  52  Mo. 

122,  483 

Sickler,   Clark  v.   64  New  York, 

231,  295 

Sidney,  Mapes  v.  Cro.  Jac.  683,  8 

Sidney  Road  Co.   v.   Holmes,   16 

Up.  Can.  Q.  B.  R.  268,  357 

Sidner,  Reed  v.  32  Ind.  373,  360 

Sievewright  v.  Archibald,  17  Ad. 

&  Ell.  (N.  S.)  103,  66 

Signiago,  Picotv.  22  Mo.  5S7,  28 

Sigourney,  Caldwell  v.  19  Ct.  37,  120 
Sigourney,  Clark  v.  17  Ct.  511,  120 
Sigourney  v.    WethereU,    6  Met. 

(Mass.)  553,  119,319* 

Sigourney  tK  WethereU,    6    Met. 

Car.)  19,  180 

Silence,  Bi-ewster  v.  8  New  York, 

207,  70,  74 

Sill  V.  Leslie,  16  Ind.  236,  149,  153 

Silly,  Mayor  of  Dartmouth  v.  7  Ell. 

&  Black.  97,  471 

Silk   V.    Eyi-e,    Irish  Rep.   9  Eq. 

393,  280 

Silliman,  National  Exchange  Bank 

V.  65  New  York  475,  281 

Silmeyer  v.  Schaffer,  60  111.  479,      309 


TABLE   OF   CASES. 


cxxxv 


Section 
Silvey  r.  Dowell,  53  III.  260,  234 

Simeon  v.  Cramm,  121  Mass.  492,  407 
Simond,  Ludlow  v.  2  Caines'  Cas. 

in  Error  1,  79,  345 

Simon  V.   Steele,   36  New  Hamp. 

73,  171 

Simon  v.  Motivos,  3  Burrow,  1921,  76 
Simon  v.  Motivos,  1  W.  Blackstone, 

599,  76 

Simons  v.  Steele,   36  New  Hamp. 

73,  66,  73,  104 

Simmons  v.  Barefoot's  Exrs.  2  Hay. 

(Nor.  Car.)  606,  5 

Simmons  v.  Gates,  56  Ga.  609,  286 

Simmons,  Farebrotherv.  5  Bam.  & 

Aid.  333,  76 

Simmons  v.  Guise,  46  Ga.  493,  316 

Simmons  v.  Keating,  2  Starkie,  375,  7 
Simpson  v.  Blunt,  42  Mo.  542,  508 

Simpson,  Catton  v.  8  Adol.  &  Ell. 

136,  198 

Simpson,  Christie  v.  1  [Rich.  Law, 

(So.  Car.)  407,  76 

Simpson,  Harris  v.  4  Littell  (Ky.) 

165,  434 

Simpson,  Manley  v.  2  Tyrwh.  85,  364 
Simpson  v.  Manley,  2  Crompton  & 

Jer.  12,  134,  364 

Simpson  v.  Nance,  1   Spears  (So. 

Car.)  4,  47,  49 

Simpson  v.   Penton,  2  Cromp.  & 

Mees.  430,  63 

Simpson,  Rey  v.   22  How.  (U.  S.) 

341,  152,  153 

Simpson,  Rice  v.  9  Heisk.  (Tenn.) 

809,  504 

Simpson  v.  Roberts,  35  Ga.  180,  441 
Simpson,  Waters  v.  2  Gilman  (III.) 

570,  324 

Simpson,  Wrig-ht  v.  6  Vesey,  714,  205 
Simpson,  United  States  v.  3  Pen.  & 

Watts  (Pa.)  437,  296 

Simpson's  Exr.  v.  Bovard,  74  Pa. 

St.  351,  333,  357 

Sims,  Creath's  Admr.   v.  5  How. 

(U.  S.)  192,  296 

Sims,  Gaff  v.  45  Ind.  262,  1,  168 

Sims,  Gordon  v.  2  McCord  Ch.  (So. 

Car.)  151,  76 


Sectiom 
Simms,  Richards  v.  1  Dev.  &  Batt. 

Law  (Nor.  Car.)  48,  225 

Simson  v.  Cooke,  9  Moore,  558,  98 
Singer,  Mundorff  v.  5  Watts  (Pa.) 

l'?2,  391 

Singer  v.   Troutmao,  49  Barb.  (N. 

Y.)  182,  207 

Singstack  v.  Harding,  4  HaiT.  & 

Johns.  186,  76 

Singleton  r.  Townsend,  45  Mo.  379,  259 
Sinclair  v.  Richardson,  12  Vt.  33,  63 
Singley  v.  Cutter,  7  Conn.  291,  72 

Sisson  V.  Barrett,  2  New  York,  406,  17 
Slade,  Seton  v.  7  Vesey,  265,  75 

Slagee,  Jefferson  County  r.  66  Pa. 

St.  202,  63 

Slawson  v.  Ker,  29  La.  An.  295,  444 
Slater,  Emerson  v.  22  How.  (U.  S.) 

28,  ^6,  56 

Slattery  v.  Police  Jury,  2  La.  An. 

444,  388 

Slee,  Dunn  v.  1  Moore,  2,  244 

Sledge,  Jennings  v.  3  Kelly  (Ga.) 

128,  437 

Sleeper,  Lane  v.  18  New  Hamp. 

299,  188 

Slevin  v.  Morrow,  4  Ind.  (2  Porter) 

425,  384 

Slingerland  v.  Morse,  7  Johns.  463,  50 
Sloan,    Anderson    v.   1    Colorado, 

484,  404 

Sloan  V.  Creasor,  22  Up.  Can.  Q. 

B.  R.  127,  340 

Sloan,  Justices  r.  7  Ga.  31,  494 

Sloan  V.  Wilson,  4  Harr.  &  Johns. 

322,  68 

Sloane,  State  v.  20  Ohio,  327,  453 

Slocomb  V.  Robert,  16  La.  (Curry) 

173,  443 

Sloo,   Bank  of  Illinois  v.   16  La. 

(Curry)  539,  157,  160 

Sloper,    People     v.    1     Cummins, 

(Idaho) 183,  435 

Sluby  V.  Champlain,  4  Johns.  461,  197 
Small,  Clark  i'.  6  Yerg.  (Tenn.) 

418,  6,  68 

Small  V.  Commonwealth,  8  Pa.  St. 

101,  502 

Small  V.  Currie,  2  Drewry,  102,    5,  365 


CXXXVl 


TABLE   OF   CASES. 


Section 
Small  V.  Currie,  o  De  Gex,  Macu. 

&  Gor.  141,  345 

Small,  Globe  Bank  v.  25  Me.  366,  168 
Smart,  Low  v.  5  New  Hamp.  353,  233 
Sman-  v.  McMaster,  35  Mo.  349,  323 
Sman-  v.  Sclmitter,  38  Mo.  478,  317 
Smee,  Hai'greave  v.  6  Bing.   244, 

78,  132 
Smee,  Hargreave  v.    3  Moore  & 

Payne.  573,  132 

Smeidel  v.  Lewellyn.  3Phila.  (Pa.) 

70,  86 

Smith  V.  Allen,  Saxton  (N.  J.)  43,  118 
Smith,  Andrews  v.  2  Cromp.  Mees. 

&  Ros.  627,  49 

Smith,  Andrews  v.  Tyrwh.  &  Gr. 

173,  '  49 

Smith  v.  Anthony,  5  Mo.  604,  102 

Smith  V.  Arnold,  5  Mason  (C.  C.)  414,  76 
Smith  V.    Bainbridge,    6    Blackf. 

(Ind.)  12,  169 

Smith,  Bank  of  Brighton  v.  12  Al- 
len, 243,  478,  521 
Smith,  Bank  of  Brighton  v.  5  Al- 
len, 413,  13 
Smith  V.  Bank  of  Scotland,  1  Dow, 

272,  367 

Smith,  Bank  of  St.  Albans  v.  30 

Vt.  148,  17,  89 

Smith  V.  Barker,   6  Watts    (Pa.) 

508,  431 

Smith,  Barnett  v.  17  111.  565,  99 

Smith,  Belcher  r.  7  Gush.  482,  1-54 

Smith  D.  Bing,  3  Ohio,  33,  242 

Smith,  Bizzell  v.  2  Dev.  Eq.  (Nor. 

Car.)  27,  209 

Smith  V.  Bland,  7  B.  Mon.  (Ky.) 

21,  499 

Smith,  Bleakley  v.  11  Simons,  150,  75 
Smith,  Brien  v.  9  Watts  &  Serg. 

(Pa.)  78,  275 

Smith  V.  Buckalew  v.  44  Ala.  638,  206 
Smith  V.   Chicago  &  N.  W.  R.  R. 

Co.  18  Wis.  17,  100 

Smith  V.  Clopton,  48  Miss.  06, 

18,  209,  317,  508 
Smith  V.  Compton,  6  Cal.  24,  361 

Smith  V.  Commonwealth,  59  Pa. 

St,  320,  488 


Section 
Smith  V.  Commonwealth,  25  Gratt. 

(Va.)  780,  324 

Smith  V.  Conrad,  15  La.  An.  579,  233 
Smith,  Cowper  v.  4  Mees.  &  Wels. 

519,  126 

Smith  V.  Crease's  Exr.  2  Cranch  C. 

C.  431,  209 

Smith  V.  Crooker,  5  Mass.  538,  336 

Smith  V.  Dann,  6  Hill,  543,  103,  167 
Smith,  Davis  v.  5  Ga.  274,  273 

Smith    V.   Dickinson,    6    Humph. 

(Tenn.)  261,  35 

Smith,  District  Township  of  Union 

V.  39  Iowa,  9,  477,  478 

Smith  V.  Doak,  3  Tex.  215,  18,  349 
Smith,  Dunn  v.  12  Smedes  &  Mar. 

(Miss.)  602,  349 

Smith  V.  Evans,  1  Wils.  313,  75 

Smith  V.  Falconer,   11  Hun,   (N. 

Y.)  481,  404 

Smith  V.  Finch,  2  Scam.  (111.)  321, 

9,  53,  153 
Smith,  First  Natl.  Bank  v.  25  Iowa, 

210,  513 

Smith   V.    Governor,    2    Robinson 

(Va.)  229,  519 

Smith  V.  Gorton,    10  La.   (Curry) 

374,  149 

Smith,  Grant  v.  46  New  York,  93,  98 
Smith,  Grieve  v.  23  Up.  Can.  Q.  B. 

R.  23,  345 

Smith,  Hall  V.  5  Howard  (U.  S.) 

96,  180 

Smith,    Hartwell  v.   15  Ohio  St. 

209,  230 

Smith  V.  Harrison,  33  Ala.  706,  260 
Smith  V.  Hawkins,  6  Ct.  444,  299 

Smith,  Hunt  v.  17  Wend.  179,  297 

Smith  V.  Hyde,  19  A^t.  54,  63,  116 

Smith  V.  Hyde,  36  Vt.  303,  310 

Smith  V.  Ide,  3  Vt.  290,  68,  72 

Smith  V.  James,  1  Miles  (Pa.)  162,  190 
Smith  V.  Jones,  7  Leigh  (Va.)  165,  76 
Smith,  Joslyn  v.  13  Vt.  353,  120,  296 
Smith,  King  v.  2  Leigh  (Va.)  157,  349 
Smith  r.  Kinney,  6  Neb.  447,  189 

Smith  V.  Kitchens,  51  Ga.  158,  432 
Smith,  Lamp  v.  56  Ga.  589,  436 

Smith  V.  LoveU,  2  Montana,  332,     480 


TABLE    OF   CASES. 


CXXXVll 


Section 
Smith  V.  Martin,  4  Des.  Eq.  (So. 

Car.)  148,  117 

Smith,  McClure  v.  56  Ga.  439,  439 

Smith,  McCue  v.  9  Minn.  252,  38 

Smith  c.  McLeod,  3  Ired.  Eq.  (Nor. 

Car.)  390.  2G1 

Smith  V.  Moberly,  10  B.  Men.  (Ky.) 

266,  '  94,  354 

Smith,  Morgan  v.  7  Hun  (N.  Y.) 

244,  364 

Smith  V.  Mon-ill,  54  Me.  48,  226 

Smith  V.  Montgomery,  3  Texas,  199,  97 
Smith,  Xisbet  v.  2  Brown's  Ch.  R. 

579,  205,  326 

Smith,  O'Donnell  v.  E.  D.  Smith 

(N.  Y.)  124,  53 

Smith,  Ovington  r.  78  111.  250,  414 

Smith  V.  Peoria  County,  59  111.  412, 

355,  469 
Smith,  Towell  v.  8  Johns.  249, 

183,  190 
Smith  V.  Prince,  14  Ct.  472,  188 

Smith  V.  Rice,  27  Mo,  505, 

27,  107,  326 
Smith  V.  Rines,  32  Mc.  177,  197 

Smith  V.  Roby,  6  Heisk.  (Tenn.) 

546,  418 

Smith  V.  Rogers,  14  Ind.  224,  82 

Smith  V.  Rudhall,  3  Foster  &  Fin. 

143,  63 

Smith  V.  Rumsey,  33  Mich.  183, 

255,  269 
Smith  V.  Sayward,  5  Groenl.  504, 

46,  50 
Smith  V.  Shelden,  35  Mich.  42, 

1,  19,  23 
Smith,  Shields  v.  8    Bush    (Ky.) 

001,  500 

Smith  r.  Smith  5  Ircd.  Eq.  (Nor. 

Car.)  34,  193 

Smith  V.  Smith,  1   Devereux,  Eq. 

(Nor.  Car.)  173,  225 

Smith  V.  Stapler,  23  Ga.  300,  451 

Smith  V.  Starr,  4  Hun  (N.  Y.)  123,     36 
Smith  V.  Steele,  25  Vt.  427,  302 

Smith  V.  Strout,  63  Me.  205,  214 

Smith  r.  Swain,  7  Richardson  Eq. 

(So.  Car.)  112,  273 

Smith,  TerreU  v.  8  Ct.  426,  377 


Section 
Smith  V.  Townsend,  25  New  York, 

479,  22 

Smith,  Treat  v.  54  Me.  112,  299 

Smith,  Troy  v.  33  Ala.  469,  282 

Smith  V.  United  States,  2  Wallace 

(U.  S.)  219,  .334 

Smith,  White  v.  33  Pa.  St.  186,        340 
Smith,  White  v.  2  .Tones  Law  (Nor. 

Car.)  4,  46G 

Smith,  Williams  v.  48  Me.  135,        305 
Smith  V.  Winter,  4  Mees.  &  Wels. 

454,  300 

Smith,  Yeary  v.  4"i  Texas,  56,  296 

Smith's  Exrs.  v.  Anderson,  18  Md. 

5-'0,  227 

Smith's  Exr.  Ashby's  Admr.  v.  9 

Leigh  (Va.)  164,  381 

Smith's  Exrs.  Cope  v.  8  Serg.  & 

Rawle  (Pa.)  110,  206,296 

Sm3'ley  v.  Head,  2  Rich.  Law  (So. 

Car.)  590,  128,  215 

Smythe,  Drake  v.  44  Iowa,  410,        325 
Snevily  v.  Ekel,  1  Watts  Si  Serg. 

(Pa.)  203,  154 

Snevily  v.  Johnston,    1   Watts  & 

Serg.  307,  7 

Sneed's  Exrs.  v.  White,  3  J.   J. 

Mar.  (Ky.)  525,  48 

Snell   V.   Allen,    1   Swan.    (Tenn.) 

208,  521 

Snell  V.  State,  43  Ind.  359,  483 

Snell  V.  Warner,  63  111.  176,  180 

Snider  v.  Greathouse,  16  Ark.  72, 

66,  527 
Snodgrass,  Blair  v.  1  Sneed  (Tenn.) 

1,  66 

Snow,  Draper  v.   20  New  York, 

ool,  io 

Snow,  First  Congregational  Socie- 
ty V.  1  Cush.  510.  282 
Snyder  v.  Klose,  19  Pa.  St.  235,       352 
Snyder,   Vredenburgh  ik   6  Iowa 
Suydam    v.    Westfall,     2    Denio, 

205,  156 

Suydam  r.  Westfall,  4  Hill,  211,       156 
Suydam  v.  Vance,  2  McLean,  99, 

321,  325 

(Clarke)  39,  392 

Soliier  v.  Loring,  6  Cush.  537,  329 


CXXXVIU 


TABLE   OF   CASES. 


Section 
SoUee  v.  Meugy,  1  Bailey  Law  (So. 

Car.)  620,  97,  120,  136,  157 

Solomon,  Lochrane  v.  88  Ga.  286,  385 
Solomon,  Phillips  v.  42  Ga.  192,  126 
Sommcrs,  Commonwealth  y.  3  Bush 

(Ky.)  555,  483 

Somerville  t\  Maibury,  7  Gill   & 

Johns.  (Md.)  275,  381 

Somraerville,  McBrown  v.  2  Stew. 

(Ala.)  515,  415 

Sooy  ads.  State,  39  New  Jer.  Law 

(10  Vroom)  135,  360,  365,  367 

Sooy  ads.  State,  38  New  Jer.  Law 

324,  5,  12,  3G0 

Sooy,  State  v.  39  New  Jer.  Law 

(10  Vroom)  539,  294,  466 

Soper,  Dennison  v.  33  Iowa,  183,  176 
Somberger,   Stever  v.  24  Wend. 

275,  434 

Sotheren    r.    Reed,    4    Harris    & 

Johns.  (Md.)  307,  270 

Soule  V.  Albee,  31  Vt.  142,  68 

Soule,  Hall  v.  11  Mich.  494,  67 

Soule,   Norton  v.  2  Greenl.  (Me.) 

341,  275 

South  Carolina  Manf.  Co.  v.  Bank, 

6  Rich.  Eq.  (So.  Car.)  227,  217 

South  Carolina  Society  v.  Johnson, 

1  McCord  Law  (So.  Car.)  41,  139 
Southgate,  Rice  v.  16  Gray,  142,  177 
Southwortb,    Lothrop  v.   5  Mich. 

436,  534 

Soullard,  Hulett  v.  26  Vt.  295,  178,  187 
Southwick,  Cook  v.  9  Texas,   615, 

147,  151,  153 
Sizer,  Pringle  v.  2  Richardson,  N. 

S.  (So.  Car.)  59,  213 

Sparks,  Dunn  v.  7  Ind.  490,  225 

Sparks,  Dunn  v.  1  Ind.  397,  240 

Sparks  v.  Hall,  4    J.    J.    Marsh. 

(Ky.)  35,  296 

Sparks,  Todd  v.  10  La.  An.  668,  501 
Spaulding  v.  Austin,  2  Vt.  555,  185 
Spalding  v.    Andrews,  48  Pa.  St. 

411,  53 

Spalding  v.  Bank,  9  Pa.  St.  28,  214 
Spear  v.  Ward,  20  Cal.  659,  22 

Spears,  Douglass  v.  2  Nott  &  McC. 

(So.  Car.)  207,  75 


Section 
Speed,  Miller  v.  9  Heisk.  (Tenn.) 

196,  192 

Speckenagle,  Sharpe  v.  3  Serg.  & 

Rawle  (Pa.)  463,  126 

Speidel,  Leonard  v.  104  Mass.  356,  407 
Spencer,  Bradwell  v.  16  Ga.  578,  533 
Spencer  v.  Carter,   4  Jones'  Law 

(Nor.  Car.)  278,  175 

Spencer  r.  Handley,  5  Scott  (N.  R.) 

546.  354 

Spencer,  Hurd  v.  40  Vt.  581,  370 

Spencer,    Okie    v.    1   Miles    (Pa.) 


299, 


U7 


Spencer  v.  Thompson,  6  Irish  Com. 

Law  Rep.  537,  378 

Spencer,  United  States  v.  2  Mc- 
Lean, 405,  449 
Spicer,  McMurray  v.  Law  R.  5  Eq. 

527,  67 

Spicer  v.  Norton,  13  Barb.  (N.  Y.) 

542,  71 

Spies    V.    Gilmore,    1   New  York, 

321,  150 

Spiers  v.  Houston,  4  Bligh.  (N.  R.) 

515,  98 

Spinhorst,  Kupfer  v.  1  Kansas,  75,  517 
Spooner,   Boardman  r.   13  Allen, 

353,  66,  76 

Spooner  v.  Dunn,  7  Ind.  81,  50 

Spottswood  V.  Dandridge,  4  Munf. 

(Va.)  289,  495 

Sponslers'  Exrs.  Wetzel  v.  18  Pa. 

St.  460,  206,  207 

Sproson,  Westhead  v.  6  Hurl.   & 

Nor.  728,  9 

Spring  Hill  Mining  Co.  v.  Sharp, 

3Pugsley(NewBruns.)603,  476 
Springfield  Manf.   Co.  v.  West,  1 

Cush.  3S8,  434 

Springfield,  Nail  v.  9  Bush  (Ky.) 

673,  314 

Spratt,  Clopton  v.  52  Miss.  251,  388 
Spratlin     v.      Hudspeth,     Dudley 

(Ga.)  155,  91 

Sprague,  Dugan  v.  3  Ind.  600,  319 

Sprigg  V.  Bank  of  Mount  Pleasant, 

10  Peters  (U.  S.)  257,  28 

Sprigg,  Cross  v.  2  Hall  &  Twells, 

223.  322 


TABLE   OF   CASES. 


CXXXIX 


Section 
Sprigg,  Cross  v.  2  Macn.  &  Gor. 

113,  322 

Springer  v.  Hutchinson,    19    Me. 

359,  35 

Springer  v.  Toothaker,  43  Me.  381, 

209,  378 
Springer,  Springer's  Admr.  v.  43 

Pa.  St.  518,  263 

Spurlock,    Hopkins    v.    2    Heisk. 

(Tenn.)  152,  206 

Squire,  Stephens  v.  5  Modern,  205, 

53,  54 
Staats  V.  Howlett,  4  Denio,  559,  70 
Stadtv.  Lill,  9East,  348,  70 

Stage  V.  Olds,  12  Ohio,  158,  115 

Stagg  V.  Linnenfelser,  59  Mo.  336,   147 
Stafford  Bank  v.  Crosby,  8  Greenl. 

(Me.)  191,  299 

Stafford  r.  Low,  20  111.  152,  434 

Stafford  v.  Low,  16  Johns.  67,  162 

Staunton*    Wade    v.     5    Howard 

(Miss.)  631.  319 

Stackhouse,  Paul  v.  38  Pa.  St.  302,      7 
St.  Albans  Bank  v.  Dillon,  30  Vt. 

122,  128 

■Stainbank,    Davies  v.    6    DcGex, 

Macn.  &  Gor.  679,  210,  312,  322 

Stapleton's  Admr.  Harley  v.  24  Mo. 

248,  185 

Staples,  Consolidated  Presbyterian 

Society  v.  23  Conn.  544,  49 

Staples,   Lord  v.   23  New  Hamp. 

448,  181 

Stapler,  Smith  v.  23  Ga.  300,  451 

Stallings  v.  Johnson,  27  Ga.  564,      307 
Stallworth,  Presslar  v.  37  Ala.  402 

259,  272,  529 
Stallworth  v.  Preslar,  34  Ala.  505, 

251,  257,  259 
Standley  v.  Miles,  36  Miss.  434,  7 

Standclift,    Richmond    v.  14    Vt. 

258,  363 

Stansfield  r.  Johnson,  1  Esp.  101,      76 
Stanbury,  United  States  f.  1  Peters, 

873,  377 

Stanford  v.  Allen,  1  Cush.  473,  83 

Stanton  r.  Commonwealth,  2  Dana 

(Ky.)  307,  486 

Stanton,  Ide  v.  15  Vt.  685,  C6 


Section 
Stanton,  Pollard  v.  5  Ala.  451,  537 
Stantons,  Eddy  v.  21  Wend.  2^.5,  84 
Stanly  v.  Hendricks,  13  Ired.  (Nor. 

Car.)  86,  49 

Stanly,   Lemayne  v.   1    Freeman, 

538,  75 

Stanley,   Belfast  Banking   Co.  v. 

Irish  Rep.  1  Com.  Law,  693,  296 

Stanley,  Inhabitants  of  Farming- 
ton  V.  60  Me.  472,  474,  476 
Stanley,  Lemayne  v.  3  Levinz,  1,        75 
Stanley.  Lobb  v.  5  Queen's  B.  574,     75 
Stanley,    Mecorney    v.    8    Cush. 

(Mass.)  85,  8 

Stanley,  Porter  v.  47  Me.  515,  464 

Stark  V.  Fuller,  42  Pa.  St.  320,         216 
Stark,  Goodwin  v.  15  New  Hamp. 

218,  440 

Starry  v.  Johnson,  32  Ind.  438,         383 
Starrett  v.  Barber,  20  Me.  457,  94 

Starling  v.  Buttles,  2  Ohio,  303,        506 
Starr,  Bates  v.  6  Ala.  697,  63 

Starr,  Smith  /•.  4  Hun  (N.  Y.)  123,    36 
Starnes,  Greene  v.  1  Heisk.  (Tenn.) 

582,  192 

Stamps,  Bush  v.  26  Miss.  463,  284 

Stamps,  Sheid  v.  2  Sneed  (Tenn.) 

172,  67 

Stamford,  &c.  Banking  Co.  v.  Ball, 

4  DeGex,  Fish  and  J.  310,  22 

Stamford  Bank  v.  Benedict,  15  Ct. 

437,  265,  286 

Statler,  Glenn  v.  42  Iowa,  107,         107 
Statts,  Davis  v.  43  Ind.  103,  128 

State  V.  Allen,  2  Humph.  (Tenn.) 

258,  431 

State  V.  Alden,  12  Ohio,  59,  295 

State,  AlUson  v.  8  Heisk.  (Tenn.) 

312,  145 

State,  Armington  v.  45  Ind.  10,        452 
State,    Armstrong     v.    7   Blackf. 

(Ind.)  81,  462 

State  V.  Atherton,  40  Mo.  209, 

367,  369 
State,  Bagot  v.  33  Ind.  202,  522 

State  V.  Baker,  64  Mo.  167,  358 

State,  Bales  v.  15  Ind.  321.  466 

State  V.  Bartlett,  30  Miss.  624,  444 

State  V.  Bates,  36  Vt.  387,         445,  476 


cxl 


TABLE    OF    CASES. 


Section 
State    Bank,  Bates    v.  7  Ark.   (2 

Eng.)  894,  504 

State  r.  Beard,  11  Robinson  (La.) 

243,  323 

State,  Belding  v.  25  Ark.  315,  431 

State  V.  Benton,  48  New  Hamp. 

551,  440 

State  V.  Berry,  34  Ga.  546,  429 

State  V.  Bird,  2  Ricliardson  Law 

(So.  Car.)  99,  459 

State  V.  Birchim,  9  Nevada,  95,  439 
State  V.  Blake,  2  Ohio  St.  147,  124 

State    V.  Blakemore,   7    Heiskell, 

(Tenn.)  633,  93 

State  V.  Blair,  32  Ind.  313,  335 

State,  Boggs  v.  46  Texas,  10,  477,  510 
State  V.  Bowman,  10  Ohio,  445,  127 
State  V.  Bradshaw,  10  Iredell  Law 

(Nor.  Car.)  229,  473 

State  V.  Brown,  16  Iowa,  314,  433,  435 
State  V.  Brown,  11  Ired.  Law  (Nor, 

Car.)  141,  484 

State  V.  Bugg,  6  Robinson  (La.) 

63,  121 

State  r.  Burnham,  44  Me.  278,  431 
State,  Butler  v.  20  Ind.  169,  458 

State,  Carey  v.  34  Ind.  105.  453 

State  V.  Carleton,  1  Gill  (Md.)  249,  324 
State  V.  Coste.  36  Mo.  437,  532 

State  V.  Cocke,  37  Texas,  155,  439 

State  V.  Conover,  4  Dutcher  (N.  J.) 

224,  '  484 

State  Bank,  Comegys  v.  6  Ind.  357,  235 
State  V.  Cone,  32  Ga.  663,  428 

State,  Coman  v.  4  Blackf.  (Ind.) 
_  241,  324 

State  V.  Cunningham,  10  La.  An. 

393,  427, 435 

State,  Darter  v.  5  Blackf.  (Ind.)  61,  519 
State,   Dennard  v.  2  Kelly  (Ga.) 

137,  432 

State,  Doepfner  v.  36  Ind.  Ill,  480 
State,  Douglass  v.  44  Ind.  67,  305 

State  V.  Doyal,  12  La.  An.  653,  426 
State  V.  Druly,  8  Ind.  431,  484 

State  V.  Drury,  36  Mo.  281,  461 

State,  Duncan  v.  7  La.  An.  377,  474 
State   V.   Dunn,  11   La.   An.   549, 

336,  348,  367 


Section 
State  Bank   v.   Edwards,  28  Ala. 

512,  378 

State  Bank  v.  Evans,  3  J.  S.  Green 

(N.  J.  Law)  155,  357 

State  V.  Farmer,  21  Mo.  160,  484 

State  Bank,   Ferguson  v.   8  Ark. 

(3  Eng.)  416,  296 

State  V.  Findley,  10  Ohio,  51,  443,  445 
State  Bank,  Findley  v.  6  Ala.  244,  354 
State,  Fleece  v.  25  Ind.  384,  439 

State  V.  Fleming,  46  Ind.  206,  492 

State  V.  Fredericks,  8  Iowa,  553,  13 
State,  Fridge  v.  3  Gill  &  Johns, 

(Md.)  103,  29 

State  V.  Frith,  14  La.  (Curry)  191, 

431,  435 
State  V.  Garton,  32  Ind.  1,  355 

State  V.  Givan,  45  Ind.  267,  453 

State,  Goodin  v.  10  Ohio,  6,  457 

State,  Gott  v.  44  Md.  319,  327 

State  f.  Hammond,  6  Gill  &  Johns. 

(Md.)  157,  325 

State  V.  Hampton,  14  La.  An.  690, 

82,  452 
State  V.  Hampton,  14  La.  An.  736,  442 
State  V.  Hari-ison,  Harper  Law  (So. 

Car.)  88,  456 

State  V.  Hathom,  36  Miss.  491,  473 
State  V.  Hayes,  7  La.  An.  118,  475 

State  v.  Hicks,   2    Blackf.   (Ind.) 

336,  448 

State  V.  Hood,  7  Blackf.  (Ind.)  127,  462 
State  V.  Humphreys,  7  Ohio,  224,  491 
State,  Hunt  v.  53  Ind.  321,  355 

State,  Iglehart  v.  2  Gill.  &  Johns. 

(Md.)  235,  532 

State  V.  Jennings,  10  Ohio  St.  73,  525 
State  V.  Jones,  3  La.  An.  9,  4M 

State,  Kelly  v.  25  Ohio  St.  567,  445,  467 
State  Bank,   King  v.   9  Ark.    (4 

Eng.)  185,  296 

State,  Lane  tJ.  27  Ind.  108,  461,  520,  522 
State,    Laurenson    v.    7  Harr.    & 

Johns.  (Md.)  339,  445 

State  V.  Le  Cerf,  1  Bailey  Law  (So. 

Car.)  410,  426 

State,  Lee  v,  2  Kelly  (Ga.)  137,  432 
State  V.  Lewis,  73  Nor.  Car.  138, 

29,  478 


TABLE   OF   CASES. 


cxli 


Section 
State,  Lewis  r.  41  Miss.  686,  429 

State  V.  Long,  8  Iredell  Law  (Nor. 

Car.)  415,  48?. 

State  V.  Littlefield,  4  Blackf.  (Ind.) 

129,  480 

State    V.    Mahon,    3    Harrington 

(Del.)  568,  427 

State  V.  Mann,  21  Wis.  684,  484 

State  V.   Martel,  3  Robinson  (La.) 

22,  432 

State  V.  Matson,   Admr.  44  Mo. 

305,  383 

State  V.  McCormack,  50  Mo.  568,  464 
Slate,  McGooney  v.  20  Ohio,  93,  112 
State,   Merryman  v.   5    Hams  & 

Johns.  (Md.)  423,  270 

State  Bank  at  Brunswick  v.  Mat- 
tier,  2  Bosw.  (N.  Y.)  392,  49 
State  V.  Miller,   5  Blackf.  (Ind.) 

381,  272 

State,  Moore  v.  49  Ind.  558,  490 

State,  Moore  v.  28  Ark.  480,  106 

State,  Moss  v.  10  Mo.  338,  141 

State  V.  Muir,  20  Mo.  303,  458 

State  V.  Norment,   12  La.  (Cmry) 

511,  432 

State,  Nutzenholster  r.  37  Ind.  457,  448 
State  V.  Odom,  1  Spears  Law  (So. 

Car.)  245,  447 

State,  Owen  v.  25  Ind.  371,  497 

State,  Park  v.  4  Ga.  329,  434,  438 

State,  Parks  v.  7  Mo.  194,  392 

State,  Parker  r.  8  Blackf.  (Ind.) 

292,  521 

State,  Peacock  v.  44  Texas,  11,  431 
State  V.  Peck,  53  Me.  284,  355 

State  Bank  v.  Pecks,  28  Vt.  2C0,  80 
State,  Pepper  v.  22  Ind.  399,  355,  358 
State    V.     Pepper,    31     Ind.     76, 

336,  355,  358 
State  V.  Pike,  74  Nor.  Car.  531,  526 
State,  Potter  v.  23  Ind.  550,  15,  444 
State  V.  Potter,  63  Mo.  212,  355 

State  V.  Powers,  52  Miss.  198,  461 

State  V.  Plazencia,  6  Robinson  (La.) 

417.  433 

State,    Quynn  v.  1  Harr.  &  Johns. 

(Md.)  36,  447 

State  V.  Reaney,  13  Md.  230,  430 


Section 
State  V.  Reynolds,  3  Mo.  70,  486 

State  V.  Rhoades,  6  Nevada,  352, 

443,  445,  522 
State  V.  Rhoades,  7  Nevada,  434,  473 
State  V.  Rhodius,  37  Texas,  165,  439 
State  V.  Rucker,  59  Mo.  17,  498 

State,  Rush  v.  20  Ind.  432,  82,  281 

State   Bank  v.  Robinson,  13  Ark. 

(8  Eng.)  214,  125 

State,  Scott  v.  46  Ind.  203,  453 

State  V.  Scott,  20  Iowa,  63,  428,  4:30 
State,  Sherman  v.  4  Kan.  570,  4,  430 
State  Bank,  Sheriy  v.  6  Ind.  397,  393 
State  V.  Sloane,  20  Ohio,  327,  453 

State,  Snell  v.  43  Ind.  359,  483 

State,  Sooy  ads.  33  New  Jer.  Law, 

324,  5,  12,  360 

State,  Sooy  ads.  89  New  Jer.  Law, 

(10  Vroom)  135,  360,  365,  367 

State  V.  Sooy,  39  New  Jer.  Law, 

(10  Vroom)  539,  294,  466 

State  V.  Stewart,  36  Miss.  652,  144,  533 
State,  Steinbak  v.  38  Ind.  483,  460 

State  Bank,    Stone  v.  8  Ark.   (3 

Eng.)  141,  315 

State,  Sugarman  v.  28  Ark.  142,  439 
State  V.  Thompson,  49  Mo.  188,  442 
State  V.  Tierman,  39  Iowa,  474,  432 
State  V.  Toomer,  7  Richardson  Law 

(So.  Car.)  216,  445 

State,  Tucker  r.  11  Md.  322,  32 

State  V.  Vananda,  7  Blackf.  (Ind.) 

214,  487 

State  V.  Vandusen,  5  Up.  Can.  Q. 

B. R.  353,  98 

State,  Voris  v.  47  Ind.  345,  493 

State,  Wan-en  v.  11  Mo.  583,  458 

State,  Warwick  v.  5  Ind.  350,  493 

State  Bank  v.  Watkins,  6  Ark.  (1 

Eng.)  123,  209 

State  V.  Wayman,  2  Gill  &  Johns. 

(Md.)  254,  93, 141 

State  V.  Wells,  8  Nevada,  105,  445 
State,  Wheeler  r.  9  Heisk.  (Tenn.) 

393,  478, 518 

State,  White  v.   1   Blackf.    (Ind.) 

557,  ^30 

State  V.  White,  10  Richardson  Law 

(So.  Car.)  442,  451 


cxlii 


TABLE    OF    CASES. 


Section 
State,  Widener  v.  45  Ind.  244,  481 

State  V.  Wright,  37  Iowa,  522,  436 
State  V.  Young,    23    Minn.    551, 

14,  463,  478 
State,  Young  v.  7  Gill  &  Johns. 

(Md.)  253,  442 

Stead  V.  Liddard.  8  Moore,  2,  70 

Steadman  v.  Guthrie,  4  Met.  (Ky.) 

147,  158 

Steamboat  Stacy,  Griff  v.  12  La. 

An.  8,  390 

Steamer  Belle  Air,  Holmes  v.  5  La. 

An.  523,  404 

Steams  v.  Hall,  9  Gush.  31,  67 

Steams,  Whitney  v.  16  Me.  894,  70 
Steckel,  Koening  v.  58  N.  Y.  475,  288 
Steele,  Agee  v.  8  Ala.  948,  -   315 

Steele  v.  Boyd,  6  Leigh  (Va.)  547,  312 
Steele  v.  Faber,  37  Mo.  71,  235 

Steele  v.  Hoe,  14  Adol.  &  Ell.  N.  S. 

431,  "^2 

Steele  v.  Mealing,   24    Ala.  285, 

233,  234,  236  888 
Steele,  Reeves  v.  2  Head  (Tenn.) 

647,  500 

Steele  v.  Reese,  6  Yerg.  (Tenn.) 

263,  462 

Steele,  Simons  v.  36  New  Hamp. 

73,  66,  73,  104,  171 

Steele,  Smith  v.  25  Vt.  427,  802 

Steele  v.  Towne,  28  Vt.  771,  62 

Stedman  v.  Freeman,  15  Ind.  86,  261 
Stedman,   Amold    v.    45  Pa.   St. 

186,  50 

Steinbak  v.  State,  38  Ind.  483,  460 
Steiner,  Huber  v.  2  Scott,  304,  38 

Steiple  V.  Borough  of  Elizabeth,  3 

Dutcher  (N.  J.)  407,  29 

Stem,  Miller  v.  12  Pa.  St.  383,  349 

Stemmons,  Henley  v.  4  B.  Mon. 

(Ky.)  131,  265,  276 

Stephens,  Palmer  v.  1  Denio,  471,  75 
Stephens  v.  Pell,  4  Tyrwh.  6,  49 

Stephens  v.  Pell,  2  Cromp.  &  Mees. 

710,  49 

Stephens  v.  Squire,  5  Modem,  205, 

53,54 
Stephens  v.  Win,  2  ISIott.  &  McC. 

372,  68 


Section 
Stephenson  v.  Taverners,  9  Gratt. 

(Va.)  398,  192 

Stephenson,    Ware  v.   10    Leigh. 

(Va.)  155,  61 

Steptoe's  Adnir.  r.  Harvey's  Exr.  7 

Leigh  (Va.)  501,  827 

Stern  v.  Drinker,  2  E.  D.  Smith 

(N.  Y.)  401,  50 

Stem,  Miller  v.  9  Pa.  St.  286,  298 

Sterns  v.  Marks,  35  Barb.  (N.  Y.) 

565,  98 

Sterling,  Dundas  v.  4  Pa.  St.  73,  361 
Sterling,  Parker  v.  10  Ohio,  357,  429 
Sterling  v.  Stewart,  74  Pa.  St.  445,  288 
Stetson  V.  City  Bank  of  N.  0.  12 

Ohio  St.  577,  82 

Stetson  V.  City  Bank,   2  Ohio  St. 

167,  521 

Stetson,  Thomas  v.  59  Me.  229,  298 
Steuart,   Butcher  r.    11   Mees.    & 

Wels.  857,  72 

Stevens  v.  Allmen,  19  Ohio  St.  485,  461 
Stevens,  Bank  of  Wooster  v.  6  Ohio 

St.  262,  202 

Stevens    v.     Campbell,     6     Iowa 

(Clarke)  538,  504 

Stevens,  Franklin  Bank  v.  39  Me. 

582,  365 

Stevens,  Gard  v.  12  Mich.  292,  137 
Stevens,  Sanderson  v.    116  Mass. 

133,  440 

Stevenson  v.  Bay  Cfty,  26  Mich.  44, 

355,  4.52 
Stevenson  v.  Hoy,  43  Pa.  St.  191,  10 
Stevenson  v.  McLean,  11  Up.  Can. 

C.  P.  R.  208,  97 

Stever   v.  Somberger,  24   Wend. 

275,  434 

Stewart,   Atkinson  v.   2  B.  Mon. 

(Ky.)  348,  255 

Stewart,  Bank  of  United  States  v. 

4  Dana  (Ky.)  27,  283 

Stewart  v.  Barrow,  55  Ga.  664,  200 
Stewart  v.   Behm,   2  Watts  (Pa.) 

356,  127 

Stewart,  Buckner's  Admr.    v.  34 

Ala.  529,  254 

Stewart,  Butcher  r.  11   Mees.   & 

Wels.  857,  48 


TABLE   OF   CASES. 


cxliii 


Section 
Stewart  v.  Davis'  Exr.  18  Ind.  74,  352 
Stewart,  Farmer  v.  2  New  Hainp. 

97,  214 

Stewart,  Forest  v.  14  Ohio  St.  246, 

85, 170 
Stewart  v.  Hinkle,  1  Bond.  506,  9,  48 
Stewart,  Krutz  v.  54  Ind.  178,  68 

Stewart  v.  Malone,  5  PhUa.  440,  53 
Stewart,  Miller  v.  4  Washington, 

(C.  C.)  26,  342 

Stewart,  Miller  v.  9  Wheaton  680, 

79,342 
Stewart  v.  Parker,  55  Ga.  656,  17, 299 
Stewart,  Roberts  v.  31   Miss.   664, 

296,  298,  306,  309 
Stewart,  State  v.  36  Miss.  652,  144,  533 
Stewart,  Sterling  v.  74  Pa.  St.  445,  288 
Stewart,  Thomas  v.  2  Pen.  &  Watts 

(Pa.)  475,  434 

Stirling,  Crawford  v.  4  Esp.  207,  10 
Stirling  r.  Forrester,  3  Bligh,  575,  383 
Stickles,  Crane  v.  15  Vt.  252,  370 

Stickler  v.  Burkholder,  47  Pa.  St. 

476  207 

Stinson  v.   Brennan,  Cheves  Law 

(So.  Car.)  15,  184 

Stinson,  Gass  v.  2  Sumner,  453,  342 
Stillinger,   Culbertson  v.    Taney's 

Decisions  (Campbell)  75,  195 

Stickney  r.  Mohler,  19  Md.  490,  26 
Stillwell  V.  How,  46  Mo.  589,  225 

Stillwell,  Wilson  v.  9  Ohio  St.  467.  82 
St.   Louis   Building  and    Savings 

Assn.  V.  Clark,  36  Mo.  601,  281 

Stoppani  v.  Richard,  1   Hilton  (N. 

Y.)509,  6 

Stovall  V.  Banks,  10  Wallace,  £83,  49G 
Stobridge,  Ford  v.  Nelson,  24,  176 

Stoops    V.  Wittier,    1    Mo.  Appl. 

Rep.  420,  524 

Stokes  V.   Hodges,   11   Rich.    Eq. 

(So.  Car.)  135,  25 

Stoker,  Dick  v.   1  Devereux  Law 

(Nor.  Car.)  91,  426 

StothofF  V.  Dunham's  Exrs.  4  Har- 
ris (N.J.)  181  248,252 
Stodt  V.  Hine,  45  Pa.  St.  30,  50 
Stoddard  r.  Kimball,  6  Cush.  469,  354 
Stow,  Best  V.  2  Sandf.  Ch.  298,        352 


Section 
Stow  V.  Scott,  6  Car.  &  Payne,  241,  64 
Stowell  V.  Goodenow,  31  Me.  538,  312 
Storms  V.  Thorn,  3  Barb.  (N.  Y  ) 

314,  27 

Story,  Rains  v.  3  Car.  &  Payne, 

130,  64 

Storrs,  Booth  v.  75  111.  438,  354 

Storrs,  Wright  v.  6  Bosw.  (N.  T.) 

600,  299 

Storer,  Richards  v.  114  Mass.  101,  407 
Storer,  Oxley  v.  54  111.  159,  320 

Stoudt  V.  Hine,  45  Pa.  St.  30,  49 

Stout  V.  Ashton,   5  T.  B.  Mon. 

(Ky.)  251,  208 

Stout  V.  Dilts,  1  Southard  (N,  J.) 

218,  277 

Stout,  Happe  v.  2  Cal.  460,  70 

Stout,   Mendelson  v.   5   Jones  & 

Spen.  (N.  Y.)  408,  348 

Stout,  Ward  v.  32  111.  399,  17,  20 

Stonum,  Governor  t;.  11  Ala.  679,    120 
Stoney,  Beaubienw.  Speers  Eq.  (So. 

Car.)  508,  374 

Stockton  V.  Coleman,  39  Ind.  106,    202 
Stockton,  Kellogg  v.  29  Pa.  St.  460, 

111,  157,  158 
Stockton,  Stockton  v.  40  Ind.  225.  383 
Stockton,    Wright's  Admr.    v.    5 

Leigh  (Va.)  153,  512 

Stocker,  Loew  v.  68  Pa.  St.  226,       127 
Stocking  r.  Sage,  1  Conn.  519,  46 

Stockbridge    v.   Schoonmaker,   45 

Barb.  (N.  Y.)  100,  111 

Stone  V.  Comptcn,  6  Scott,  846,        364 
Stone  V.  Compton,  5  Bing.  (N.  C.) 

142,  364 

Stone  V.  Dennison,  13  Pick.  1,  38 

Stone,  Gammon  v.  1  Vesey  Sr.  339,  263 
Stone  V.   Rockefeller,  29  Ohio  St. 

625,  83 

Stone  V.  Seymour,  15  Wend.  19,       294 
Stone,  Sherwood  v.  14  New  York, 

267,  57 

Stone  V.  State  Bank,  8  Ark.  (3  Eng.) 

141,  315 

Stone  V.  Symmes,  18  Pick.  467,  48 

Stone  V.  White,  8  Gray  589,  332 

St.    Paul,   Brodie  v.   1  Vesey  Jr. 

326,  66 


cxliv 


TABLE   OF   CASES. 


Section 
Strafford  Bank,  Mathewson  i:  45 

New  Hamp.  104,  306 

Straton  v.  Rastall,  2  Durn.  &  East. 

3G6,  389 

Strange  v.  Fooks,  4  Giffard,  408,  886 
Strader  v.  Houghton,  9  Port.  (Ala.) 

3:34,  206 

Strait,  Brown  -;;.  19  lU.  88,  52 

Stratton,  Finn  v.   5   J.  J,  Marsh. 

(Ky.)364,  382 

Straw,  Wainwidght  v.  15  Vt.  215,  62 
Strawbridge  v.  The  Baltimore   & 

Ohio  R.  R.  Co.,  14  Ind.  360,  343 

Street  r.  Laurens,  5  Richardson  Eq. 

(So.  Car.)  227,  464 

Strever,  Agawam  Bank  v.  16  Barb. 

(N.  y.)  82,  143 

Strickland,  Maser  v.    17   Serg.    & 

Rawle(Pa.)354,  530 

Stringfellow  v.  Williams,  6  Dana 

(Ky.)236,  380 

Strohocker  v.  Cohen,  1  Spears  (So. 

Car.)  349,  53 

Stroop  V.  McKenzie.  38  Tex.  132,  17 
Strout,  Smith  v.  63  Me.  205,  214 

Strong,  Bangs  v.   7  Hill  (N.  Y.) 

250,  27,  313 

Strong,  Bangs  v.  10  Paige  Ch.  R. 

11,  299 

Strong,   Bangs  v.   4    New  York, 

315,  27 

Strong  V.  Foster,  17  Com.  Bench 

(8  J.  Scott)  201,  292,  296 

Strong  V.  Giltinan,  7  Philadelphia 

(Pa.)  176,  525 

Strong,  Hedges  v.  3  Oregon,  18,  48 
Strong    V.  Lyon,    63    New  York, 

172,  345 

Strong  V.  Riker,  16  Vt.  554,  151,  153 
Strong,  Sage  v.  40  Wis.  575,  346 

Strong,  Trotter  v.  63  111.  272,  27,  122 
Strong  P.  Wooster,  6  Vt.  536,  370 

Struthers    v.    Clark,    30    Pa.    St. 

210,  110 

Strunk  v.  Ocheltree,  11  Iowa,  158,  484 
Stukely,  Terry  v.  3  Yerger  (Tenn.) 

506,  396 

StuU  V.  Davison,  12  Bush  (Ky.)  167,  121 
Sturgeon,  Eddy  v.  15  Mo.  198,         293 


Section 
Stub,  Commonwealth  v.  11  Pa.  St. 

150,  494 

Stubbs,  Boultbee  v.  18  Vesey,  20,  329 
Studebaker  v.  Cody,  54  Ind.   586, 

33,  164 
Studebaker,  Kirby  v.   15  Ind.  45, 

166,  347 
Sturges,  FuUerton  v.  4  Ohio  St. 

529,  356 

Sturges,  United  States  v.  1  Paine, 

525,  377 

Sublett  V.   McKinney,   19    Texas, 

438,  199 

Succession  of  Diggs,  Gordon  r.  9 

La.  An,  422,  405 

Succession  of   Montgomery,  2  La. 

An.  469,  193 

Succession  of  Pratt,    16  La.  An. 

357,  388 

Sugarman  v.  State,  28  Ark.  142.  439 
Sugg,  BrHey  v.  1  Dev.  &  Batt.  Eq. 

(Nor.  Car.)  366,  272 

Sugarloaf,  Butler  f.  6  Pa.  St.  266,  111 
SuUivan  v.  Hugely,  48  Ga.  486,  296 
Sullivan  v.  Murphy,  23  Minn.  6,  49 
Summers,  Loop  v.  3  Rand.  (Va.) 

511,  370 

Sumrall,    Townsley    v.    2   Peters, 

170,  46,  53 

Summerhill  v.  Tapp,  52  Ala.  227, 

20,  382 
Summerhill  v.  Trapp,  48  Ala.  363,  378 
Supervisors  of  Albany   v.  Dorr,  7 

Hill  (N.Y.)  583,  477 

Supervisors  of  Omro  v.  Kaime,  39 

Wis.  4G8,  477 

Supervisors  of   Kewaunee   Co.    v. 

Knipfer,  37  Wis.  496,  476 

Supervisors  of  Rensellaer  tJ.  Bates, 

17  New  York,  242,  446 

Supervisors  of  St.  Joseph  v.  CofFen- 

bury,  1  Manning  (Mich.)  355,         12 
Supervisors  of  Washington  Co.  v. 

Dunn,  27  Gratt.  (Va.)  608,     444,  522 
Supervisors  of   Richmond   Co.   v. 

Wandel,  6  Lansing  (N.Y.)  33, 

455,  476 
Sureties  of  Oswald,  Treasurers  v. 

2  Bailey  Law  (So.  Car.)  214,         488 


TABLE   OF   CASES. 


cxlv 


Section 
Sutlierlin,  Allison  v.  50  Mo.  274,  266 
Sutherland,  Purviance  v.   2  Ohio 

St.  478,  186 

Sutherland,  Watson  v.  1  Cooper, 

Ch.  R.  (Tenn.)  208,  4,  204 

Sutton,  Blore  v.  3  Merivale,  237,  75 
Sutton  V.  Irwin,  12  Serg.  &  Rawle, 

13,  10 

Sutton,  Wakeman  v.  2  Adol.  &  Ell. 

78,  77 

Swallow,  Walters  v.  6  Wharton 

(Pa.)  446,  300.  305 

Swain  v.  Barber,  29  Vt.  292,  240 

Swain,  Smith  i\  7  Richardson  Eq. 

(So.  Car.)  112,  273 

Swain  v.  Wall,  1  Reports  in  Chan- 
cery, 149,  252 
Swan,  Goldshede  v.  1  Wels.  Hurl. 

&  Gor.  154,  63,  72 

Swan,   Messer  v.  8  New  Hamp. 

481,  237 

Swan  V.  Nesmith,  7  Pick.  220,  57 

Swan  V.  Patterson,  7  Md.  164,  266, 268 
Swan,  Trammell  v.  25  Texas,  473,  362 
Swann,  Day  v.  13  Me.  165,  179 

Sweeting,  Manchester  Iron  Manf. 

Co.  V.  10  Wend.  163,  206 

Swearingen,  Toland  v.  39  Texas, 

447,  417 

Sweeney,  Lomine  v.  1  Montana, 

584,  420 

Sweetser  v.  French,  2  Cush.  309,  10 
Sweet  Admr.  v.   Jeffries,  48  Mo. 

279,  277 

Sweet  V.  Lee,  3  Man.  &  Gr.  452,  75 
Sweet,  Marston  v.  66  New  York, 

207,  77 

Sweetzer  v.  French,  2  Cush.  309,  354 
Sweetzer,   Hill  v.  5  New  Hamp. 

168,  349 

Sweetzer,  Leonard  v.  16  Ohio  1,  115 
Switzler,  Mathews  v.  46  Mo,  301,  286 
Swire    v.   Redman,   Law    Rep.    1 

Queen's  Bench,  Div.  536,  315 

Swinburne,  Craythorne  v.  14  Vesey, 

160,  226,  230 

Swindle,  Coats  v.  55  Mo.  31,  17,  517 
Swing,  Boyd  e.  38  Miss.  182,  445 

Swift  V.  Beers,  3  Denio,  70,  121 


Section 
Swift,  Patchin  v.  21  Vt.  292,  68 

Swift  V.  Pierce.  13  AUen,  136,  64 

Swope,  Commonwealth  v.  45  Pa. 

St.  535,  454 

Swope  V.  Forney,  17  Ind.  385,  30,  350 
Sykes  v.  Dixon,  9  Adol.  &  Ell.  693,  71 
Sylvester  v.  Downer,  20  Vt.  355,  153 
Sylvester  v.  Downer,  18  Vt.  32,  111,  169 
Syme    v.   Montague,    4   Hen.    & 

Munf.  (Va.)  180,  405 

Symmes,  Stone  v.  18  Pick.  467,  48 


Taber,  Brown  v.  5  Wend.  566,  95 

Taintor  v.  Taylor,  36  Ct.  242,  431 

Talbot  V.  Gay,  18  Pick.  534,  168 

Talbot  V.  Wilkins,  31  Ark.  411,  260 
Talbott,  McPherson  v.  10  Gill.  & 

Johns.  (Md.)  499,  231 

Talbott,  Tucker  v.  15  Ind,  114,  352 
Talmage  v.  Burlingame,  9  Pa.  St. 

21.  311 

Talman,  Colgrove  v.  67  New  York, 

95,  23,  206 

Tallman  v.  Franklin,  14  New  York, 

584,  66 

Talman  v.  Rochester  City  Bank,  18 

Barb.  123,  3 

Tallman,  Colgrove  v.    2  Lansing 

(N.  Y.)  97,  19,  23 

Tallmadge,  Bay  v.   5  John's  Ch. 

305,  27 

Tallmadge,  Hart  v.  2  Day  (Conn.) 

331,  59 

Taliaferro,  Pinkston  v.  9  Ala.  5^7,  249 
Tanner,   Calliham  v.  3  Robinson 

(La.)  299,  296,  325 

Tanner,  Holden  v.  6  La.  An.  74,  15 
Tanner,   HolUngsworth  v.  44  Ga. 

11,  374 

Tanner  v.  Moore,  9  Queen's  B.  1,  134 
Tankersely  v.   Anderson,  4  Dev. 

Eq.  (So.  Car.)  44,  190 

Tapley  v.  Martin,  116  Mass.  275,  367 
Tappen  v.  People,  67  111.  339,  456 

Tappen,  Elmendorph  v.  5  Johns. 

176,  109 

Tappen  v.  Van  Wagenen,  3  Johns. 

465,  436 


cxlvi 


TABLE   OF   CASES. 


Sectiok 
Tapp  V.  Lee,  3  Bos.  &  Pul.  367,  59 
Tapp,  Summerhill  v.  52  Ala.  227, 

20,  382 
Tapscott,  Weaver  v.  9  Leigli  (Va.) 

424,  186 

Tarr   v.    Ravenscroft,    12    Gratt. 

(Va.)  642,  251 

Tate,  Campbell  v.  Lansing  (N.  Y.) 

370,  17 

Tate  V.  Wymond,  7  Blackf.  (Ind.) 

240,  327 

Tatlock,  Peel  v.  1  Bos.  &  Pul.  419,  368 
Tatton  V.  Wade,  18  Com.  B.  370,  59 
Tatum  V.  Bonner,  27  Miss.  760,  88 
Tatum  V.  Tatum,  1  Ired.  Eq.  (Nor. 

Car.)  113,  280 

Taul  V.  Epperson,  88  Texas,  492,  268 
Tavel,  Lecat  v.  3  McCord,  158,  68,  73 
Taverners,  Stephenson  v.  9  Gratt. 

(Va.)  398,  192 

Tayleur  v.  Wildin,   Law  Rep.  3 

Exch.  303,  90,  137 

Taylor  v.  Beck,  13  III.  376,  208 

Taylor,   Breckem-idge  v.  5  Dana 

(Ky.)  110,  221,  247,  252,  529 

Taylor  v.  Burgess,  5  Hurl.  &  Nor. 

1,  296 

Taylor  v.  Davis,  38  Miss.  493,  508 

Taylor  v.  Dening,  3  Nev.  &  Per. 

228,  '  75 

Taylor  v.  Drake,  4  Strobh.   (So. 

Car.)  431,  60,  61 

Taylor  v.  Executor  of  Heriot,  4 

Des.  Eq.  (So.  Car.)  227,  195 

Taylor  v.  Gilman,  25  Vt.  411,  352 

Taylor  v.  HiUyer,  3  Blackf.  (Ind.) 

433,  54 

Taylor  v.  Hortop,  22  Up.  Can.  C.  P. 

R.  542,  339 

Taylor  v.  Hunt's  Exr.  34  Mo.  205,  496 
Taylor  v.  Jeter,  23  Mo.  244,  371 

Taylor  v.  Johnson,  17    Ga.   521, 

361,  485,  531 
Taylor,  Kirby  v.  Hopkins'  Ch.  R. 

309,  123 

Taylor,  Lawrence  v.  5  Hill,  107,  76 
Taylor,  Leigh  v.  7  Bam.  &  Cress. 

491,  451 

Taylor,  Levy  v.  24  Md.  282,  415 


Section 
Taylor,   Martin  v.   8  Bush  (Ky.) 

384,  378 

Taylor  v.  McClung's  Ex'rs,  2  Hous- 
ton (Del.)  24,  97,  157 
Taylor  v.  MiUs,  Cowper,  525,  189 
Taylor  v.  Miller,  Phillips  Eq.  (Nor. 

Car.)  365,  192 

Taylor,  Morrison  v.  21  Ala.  779,  238 
Taylor  v.  Mon-ison,  26  Ala.  728,  2-35 
Taylor,  Mosely  v.  4  Dana,  (Ky.) 

542,  48 

Taylor,   Pahlman  v.  75  111.    629, 

147,  3.83 
Taylor,  Place  v.  22  Ohio  St.  317,  480 
Taylor  V.  Pratt,  3  Wis.  674,  68 

Taylor  v.  Ross,   3  Yerg.   (Tenn.) 

330,  68,  170 

Taylor,  Rucks  v.  49  Miss.  552, 

190, 199 
Taylor  v.  Savage,  12  Mass.  98, 

46,  231 
Taylor,  Shepard  v.  35  Texas,  774,  108 
Taylor,  Skidmore  v.  29  Cal.  619,  235 
Taylor,  Taintor  v.  36  Ct.  242,  431 

Taylor  v.  Taylor,  8  B.  Mon.  (Ky.) 

419,  278 
Taylor,   Thomson  v.  11  Hun  (N. 

Y.)  274,  187 

Taylor,  Treasurer  v.  2  Bailey  Law 

(So.  Car.)  524,  462 

Taylor  v.  Van  Dusen,  3  Gray,  493,  82 
Taylor,  Walker  r.  6  Car.  &  Pa. 

752,  51 

Taylor  v.  Wetmore,  10  Ohio,  490, 

97,  167 
Taylor  v.  Wilkinson,  1  NevDle  & 

Perry,  029,  4.>") 

Teaff  V.  Ross,  1  Ohio  St.  469,  389 

Teague  v.  Fowler,  56  Ind.  569,  49 

Teague  v.  Russell,  2  Stew.  (Ala.) 

420,  211 
Tebbetts,  WHson  v.  29  Ark.  679, 

509,  512 
Teed,  Holland  v.  7  Hare,  50.  98 

Telegraph  Co.  Doane  v.  11  La.  An. 

504,  108 

Teller  v.  Berheim,  3  Phila.  (Pa.) 

299,  84 

.  Temple,  Keate  v.  1  Bos.  &  Pul.  158,  64 


TABLE   OF   CASES. 


cxlvii 


Section 
Temples,  Treasurers  v.  2  Spears 

Law  (So.  Car.)  48,  530 

Templer,     Scholefield    v.    Johns. 

(Eng.  Ch.)  155,  124 

Templer,  Scholefield  v.  4  De  Gex 

&  Jones,  429,  124 

Tenth  Natl.  Bank  v.  Darragh,  1 

Hun  (N.  T.)  Ill,  518 

Tennant  v.  Orr,  15  Irish  Com.  Law 

R.  397,  106 

Tennell  v.  Jefferson,  5  Harrington 

(Del.)  206,  213 

Tenny  v.  Prince,  4  Pick.  385,  6, 

153,  170 

Ten  Eyck    v.    Brown,    3    Pinney 

(Wis.)  452,  35,  116,  170 

Ten  Eyck  v.  Holmes,  3  Sandf.  Ch. 

R.  428,  283 

Terry,  Annett  v.  35   New  York, 

256,  532 

Terry,  Couch  v.  12  Ala.  225,  253 

Terry  v.  Stukely,  3  Yerger  (Tenn.) 

506,  396 

Ten-y,  Wing  v.  5  Hill  (N.  Y. ) 

160,  156 

Terrell    v.   Townsend,    6   Texas, 

149,  391 

Terrell  v.  Smith,  8  Ct.  426,  377 

Tewkbury,  Evoy  v.  5  Cal.  285,  68 

Thayer  v.  Danills,  110  Mass.  345,     1^9 
Thayer  f.  Hurlburt,  5  Iowa  (Clarke) 

521,  424 

Thaj-er,  Jones  v.  12  Gray,  443,         121 
Thayer  v.  Rock,  13  Wend.  53,  38 

Their  Creditors,  Morgan  et  al.  v.  1 

La.  (Miller)  527,  316 

Therasson  v. -McSpedon,  2  Hilton 

(N.Y.)  1,  51 

Thigpen    v.    Price,    Phillips'   Eq. 

(Nor.  Car.)  146,  192 

Thomburgh  v.  Marden,  33  Iowa, 

380,  211 

Thomhill  v.  Christmas,  10  Robin- 
son (La.)  543,  434 
Thomson,  De  Beil  v.  3  Beav.  469,      66 
Thomson  v.  Palmer,  3  Richardson 

Eq.  (So.  Car.)  139,  271 

Thomson  v.  Searcy,  6  Port.  (Ala.) 
393,  494 


Section 
Thomson  v.  Taylor,  11  Hun  (N.Y.) 

274,  .     187 

Thorn,  Gasquet  v.  14  La.  (Curry) 

506,  172 

Thorn,  Storms  v.  3  Barb.  (N.  Y.) 

314,  27 

Thorne,  Dunlap  v.  1  Richardson, 

So.  Car.  213,  50 

Thome  v.  Travellers  Ins.  Co.  80  Pa. 

St.  15,  11 

Thorne,  Trimble  v.  16  Johns.  152,  2C6 
Thorner  v.  Field,  1  Bulstr.  120,  9 

Thornton  v.  Dabney,  23  Miss.  559,  298 
Thornton,  Hawkins  v.   1    Yerger 

(Tenn.)  146,  396 

Thornton  v.  Jenyes,  1   Man.  &  Gr. 

166,  72 

Tlioraton,  Pratt  v.  28  Me.  355,  218 
Thornton  v.  Thornton,  63  Nor.  Car. 

211,  200,  382 

Thomas,  Alhson  v.  29  La.  An.  732, 

27,  296 
Thomas,  Armstead  v.  9  Ala.  58'^,  303 
Thomas,  Bank  of  Upper  Canada  v. 

11  Up.  Can.  C.  P.  R.  515,  19 

Thomas  v.   Beckman,   1  B.  Mon. 

(Ky.)  29,  184,  525 

Thomas,  Brinson  v.  2  Jones  Eq. 

(Nor.  Car,)  414,  277 

Thomas  v.  Browder,  33  Texas,  783,  483 
Thomas  v.  Buiinis,  23  Miss.  550,  32 
Thomas,  Chappee  v.  5  Mich.  53,  514 
Thomas  v.  Cook.  8  Bam.  &  Cress. 

728,  46,  58 

Thomas  v.  Cook,  3  Man.  &  Ry.  444,  46 
Thomas  v.  Croft,  2  Richardson  Law 

(So.  Car.)  113,  8 

Thomas  v.  Davis,  14  Pick.  353, 

161,  163 
Tliomas  v.  Dodge,  8  Mich.  51,  67,  83 
Thomas  v.  Dow,  33  Me.  390,  296 

Thomas,  Fish  v.  5  Gray,  45,  50 

Thomas  v.  Hubbell,  15  New  York, 

405,  '  524 

Thomas  v.  Jennings,  5  Smedes  & 

Mar.  (Miss.)  627,  147 

Thomas  v.  Mann,  28  Pa.  St.  520,  207 
Thomas,   Martin  v.  24  How.  iJJ. 

S.)  315,  335 


cxlviii 


TABLE   OF   CASES. 


Section 
Thomas,  Owen  v.  3  Myl.  &  Keen, 

353,  66 

Thomas,  Scott  v.  1  Scam.  (111.)  58,  50 
Thomas  v.  Stetson,  59  Me.  229,  296 
Thomas    v.    Stewart,    2    Pen.    & 

AVatts  (Pa.)  475,  4:34 

Thomas  v.  Turscott,  53  Barb.  (N. 

T.)  200,  352 

Thomas  v.  Welles,  1  Root  (Conn.) 

57,  60 

Thomas  v.  "Williams,  10  Bam.  & 

Cress.  664,  9,  38,  54 

Thomas'  Admx.    Cox  v.  9  Gratt. 

(Va.)312,  25,  29 

Thomas'  Exr.  v.  Cleveland,  33  Mo. 

126,  380 

Tnompson  v.  Adams,  1  Freeman's 

Ch.R.  (Miss.)  225,  233.  383 

Thompson,  Allen  v.  10  New  Hamp, 

32,  51 

Thompson,  Bank  of  Gettysburg  v. 

3  Grant's, Cases  (Pa.)  114,  386 

Thompson  v.  Bond,  1  Camp.  4,  59 

Thompson  v.  Bowne,  39  New  Jer. 

Law  (10  Vroom)  2,  200,  296 

Thompson  v.  Buckhannon,  2  J.  J. 

Marsh.  (Ky.)  416,  5,  12 

Thompson,  Choteau  v.  3  Ohio  St. 

424,  188 

Thompson  v.  Dickerson,  22  Iowa, 

360,  462 

Thompson,  French  v.  6  Vt.  54,  51 

Thompson,     Glass  v.    9  B.  Mon. 

(Ky.)235,  3S0 

Thompson  v.  Hall,  45  Barb.  (N. 

T.)  214,  352 

Thompson  Hall,  v.  9  Up.  Can.  C. 

P.  R.  259,  123 

Thompson  v.  Hall,  16  Ala.  204,  68 

Thompson,  Johnston   v.  4  Watts. 

(Pa.)  446,  306 

Thompson  v.  Lack,  3  Man.  &  Gr. 

&  Scott,  540,  383 

Thompson,  Lichenthaler  v.  13  Serg. 

&  Rawle  (Pa.)  157,  206 

Thompson  v.  Linscott,  2  Greenl. 

(Me.)  186,  19S 

Thompson  v.  Lockwood,  15  Johns. 

256,  434 


Section 
Thompson,  McCramer  v.  21  Iowa, 

244,  333 

Thompson  v.   Perkins,   3   Mason, 

232,  57 

Thompson    v.   Roberts,    17    Irish, 

Com.  Law  Rep.  490,  146 

Tliompson  v.  Sanders,  4  Dev.  & 

Bat.  Law  (Nor.  Car.)  404,  230 

Thompson,  Seibert  v.  8  Kansas,  65, 

233,  282 
Tliompson,  Spencer  v.  6  Irish  Com. 

Law  Rep.  537,  378 

Thompson,  State  v.  49  Mo.  188,  442 
Thompson,  Union  Bank  v.  8  Rob- 

in,-on  (La.)  227,  478,  479 

Thompson,  Walrath  v.  4  Hill,  200,  72 
Thompson,  Walrath  v.  6  Hill,  540,  345 
Thompson   v.  Watson,   10  Yerg. 

(Tenn.)  362,  206 

Thompson  v.  Wilson's  Exr.  13  La. 

(Curry,)  138,  180 

Thompson,  Willeyr,  9  Met.  (Mass.) 

329,  318 

Thompson  v.  Young,  2  Ohio,  335,  143 
Thrasher    v.    Ely,    2     Smedes    & 

Marsh  (Miss.)  139,  170 

Thrall  v.  Benedict,  13  Vt.  248,  94 

Thurber  v.  Corbin,  51  Barb.  (N. 

Y.)  215,  23 

Thurston  v.  James,   6  Rhode  Is. 

103,  320 

Thurston  v.  Prentiss,  1   Manning 

(Mich.)  193,  190 

Thwaits  v.  Curl,  6  B.  Mon.  (Ky.) 

472,  63 

Tickridge,  Duncomb  v.  Aleyn,  94,  44 
Tierman,  State  v.  39  Iowa,  474,  432 
Tiffany  v.  Crawford,    1   McCarter 

(N.  J.)  278,  352 

Tilman,  Whitworth  v.  40  Miss.  76,  187 
Tillman  v.  Wheeler,  17  Johns.  326,  150 
Tilleston  v.  Nettleton,  6  Pick.  509, 

61,  64 
Tillotson  V.  Rose,  11  Met.  (Mass.) 

299,  176 

Tillotson,  United  States  v.  1  Paine, 

305,  330 

Tincher,  Jones  v.  15  Ind.  308,  82 

Tinker  v.  McCauley,  3  Mich.  188,       35 


TABLE   OF   CASES. 


cxlix 


Section 
Tinkler,  Mozley  v.  1  Gale,  11,  160 

Tinkler,  Mozley  v.  5  Tyi-wh.  416,  160 
Tinkler,  Mozley  v.  1  Cromp.  Mees. 

&  Eos.  692,  160 

Tinkum  v.  Duncan,  1  Grant's  Gag. 

(Pa.)  228,  84 

Tipton,  Delaney  iJ.  3  Hayw.  (Tenn.) 

14,  192 

Tipton,    Williams    v.    5  Iliimpli. 

(Tenn.)  66,  195,  268 

Titus  V.  Durkee,  12  Up.  Can.  C.  P. 

R.  367,  347 

Titzer,  Boyd  v.  6  Cold.  (Tenn.)  568,  505 
Tjader,  Von  Doren  v.  1  Nevada, 

380,  74,  149 

Tobey,  Todd  v.  29  Me.  219,  49 

Tobias  v.  Rogers,  13  New  York, 

59,  240 

Todd,  Bourne  v.  63  Me.  427,  496 

Todd,  Chapman  v.  60  Me.  282,  383 
Todd,  McCracken  v.  1  Kansas,  148, 

442,  444 
Todd  V.  Perry,  20  Up.  Can.  Q.  B. 

R.  649,  447 

Todd,  Raikes  v.  1  Perry  &  Dav. 

138,  71 

Todd,  Raikes  v.  8  Add.  &  Ell.  846,  71 
Todd  V.  Sparks,  10  La.  An.  668,  501 
Todd  V.  Tobey,  29  Me.  219,  49 

Todd,  Wilcox  v.  64  Mo.  388,  22 

ToUeson,  Foster  v.  13  Rich.  Law  & 

Eq.  (So.  Car.)  31,  172 

ToUiurst  V.   Brickinden,  Cro.   Jac. 

250,  8 

Toland  v.  Swearingen,   39  Texas, 

447,  417 

Toland,  Tompkins  v.  46  Texas,  584,  406 
Tomlin,  Lord  Bolton  v.  5  Adol.  & 

Ell.  856,  38 

Tombeckbee  Bank,  M'Grew  v.  5 

Port.  (Ala.)  547,  209 

Toms,  Commonwealth  v.  45  Pa.  St. 

408,  142 

Tomlinson,  Gausen  v.  8  E,  C.  Green 

(N.  J.)  405,  105 

Tomlinson  v.  Gill,  Amb.  330,  43 

Tomlinson  v.  Gell,  6  Ad.   &  Ell. 

564,  9,  50 

Tompkins,  People  v.  74  lU.  482,        469 


Section 
Tompkins    v.  Toland,  46    Texas, 

584,  406 

Tooth,  Dutchman  v.  7  Scott,  710,  70 
Tooth,   Dutchman  v.  5  Bing.  (N. 

C.)  577,  70 

Toothaker,    Springer    v.   43   Me. 

381,  209,  378 

Toomer  v.  Dawson,   Cheves    (So. 

Car.)  68,  66 

Toomer  v.  Dickerson,  87  Ga.  428,  389 
Toomer,  State  v.  7  Richardson  Law 

(So.  Car.)  216,  445 

Toplis  V.  Grane,  5  Bing.  (N.  C.) 

636,  46 

Torney,   Ledbetter    v.    11  Iredell 
*  Law  (Nor.  Car.)  294,  178 

Ton-ey,  Bone  v.  16  Ark.  83,  181,  527 
Torrance,    Gillespie    v.    25    New 

York,  306,  203 

Tourns  v.  Riddle,  2  Ala.  694,  383 

Tousey  v.  Bishop,  22  Iowa,  178,  315 
Toussaint  v.  Martinnant,  2  Dum. 

&  East,  100,  176 

Townsley    v.   Sumrall,    2    Peters, 

170,  46,  53 

Townsee,  Bray  ton  v.  12  Iowa,  346,  487 
Towne  v.  Ammidon,  20  Pick.  535,  117 
Towne  v.  Grover,  9  Pick.  306,  60 

Towne,  Steele  v.  28  Vt.  771,  62 

Towns  V.  Farrar,  2  Hawks  (Nor. 

Car.)  163,  85 

Town  of  Metamora,  Morley  v.  78 

111.  394,  467,  522 

Towles,  Atwell's  Admr.  v.  1  Munf. 

(Va.)  175,  115 

Towle,  McLean  v.  3  Sandf.  Ch,  R. 

117,  275 

Towle  V.  National  Guardian  Assur- 
ance Society,  3  Giffard,  42,  351 
Towle  V.  Towle,  46  New  Hamp. 

431,  534 

Townsend,  Dykes  v.  24  Now  York, 

57,  76 

Townsend  v.  Everett,  4  Ala.  607, 

466,  522 
Townsend,   Singleton   v.   45  Mo. 

379,  259 

Townsend,  Smith  v.  25  New  York, 

479,  22 


cl 


TABLE   OF   CASES. 


Section 
Townsend,  Ten-ell  v.  6  Texas,  149,  391 
Townsend,  Williams  v.  1  Bos  worth 

(K  Y.)  411,  320 

Travellers   Ins.  Co.  Thorne  v.  80 

Pa.  St.  15,  11 

Traver,  Eddy  v.  6  Paige  Ch.  R. 

521,  262,  270 

Tratt,  Damall  v.  2  Car.  &  P.  82,       44 
Trapp,    Summerhill    v.    48    Ala. 

363,  378 

Trask,  Duval  v.  12  Mass.  154,  67 

Trask  v.  Mills,  7  Cush.  552,  111 

Trail,  Trimmier  v.  2   Bailey  Law 

(So.  Car.)  480,  502 

Tracy  v.  Goodwin,  5  Allen,  409,        530 
Tracey,    Overton  v.    14    Serg.   &       * 

Rawle  (Pa.)  311,  173 

Trammell  v.  Swan,  25  Texas,  473,     362 
Trabue,  Curtcher  v.  5  Dana  (Ky.) 

80,  202,  300 

Treleasan,  Kennaway  v.  5  Mees. 

&  Wels.  498,  70 

Trecothic,  Coles  v.  9  Vesey,  234, 

66,  75,  76 
Tremper  v.  Hemphill,  8  Leigh  (Va.) 

623,  363 

Trefethen  v.  Locke,   16   La.   An. 

19,  175 

Trepagnier,   Saulet  v.  2   La.  An. 

427,  387 

Trent  Navigation  Co.  r.  Harley,  10 

East,  34,  .  391 

Treat  v.  Smith,  54  Me.  112,  299 

Treadway,    People    v.    17    Mich. 

480,  452 

Treasurer  of  Franklin  Co.  v.  Mc- 

Elvam,  5  Ohio,  200,  494 

Treasurer  of  Pickaway  v.  Hall,  3 

Ohio,  225,  494 

Treasurers  v.  Bates,  2  Bailey  Law 

(So.  Car.)  362,  443,  518 

Treasurers  v.  Hilliard,  8  Richard- 
son Law  (So.  Car.)  412,         456,  485 
Treasurers  v.  Johnson,  4  McCord 

Law  (So.  Car.)  458,  377 

Treasurers  v.  Lang,   Bailey  Law 

(So.  Car.)  430,  144 

Treasurers  v.  Sureties  of  Oswald,  2 

BaUey  Law  (So.  Car.)  214,  488 


Section 
Treasurers  v.  Taylor,  2  Bailey  Law 

(So.  Car.)  524,  462 

Treasurer  v.  Temples,    2    Spears 

Law  (So'.  Car.)  48,  530 

Tricket  v.  Mandlee,  Sid.  45,  8 

Trice  v.  Tunentine,  5  Iredell  Law 

(So.  Car.)  236,  438 

Trimmier  v.  Trail,  2  Bailey  Law 

(So.  Car,)  480,  502 

Trimble  v.  Thorn,  16  Johns.  152,  206 
Trumbo,  Jordan  v.  6  Gill  &  Johns. 

(Md.)  103,  296 

True,  Jenness  v.  30  Me.  438,  116 

True,  Seibert  v.  8  Kansas,  52,  282 

Truesdell,   Wakefield  Bank  v.   55 

Barb.  (N.T.)  602,  305 

Truesdell,  United  States  v.  2  Bond, 

78,  145 

Tx'ussell,     Barrell     v.    4    Taunt. 

117,  6,  51,  68 

Trustees  of  Free  Schools  v.  Flint, 

18  Met.  (Mass.)  539,  54 

Trustees  of  Athena3um,  Foster  v. 

3  Ala.  302,  273 

Trustees,  etc.  Kagy  v.  68  111.  75,  467 
Troy  V.  Smith,  33  Ala.  469,  282 

Trowbridge  v.  Wetherbee,  11  Al- 
len, 361,  38 
Trotter  v.  Crockett,  2  Porter  (Ala.) 

401,  384 

Trotter  v.  Strong,  63  111.  272,  27,  122 
Trousdale     v.     Philips,     2    Swan 

(Tenn.)  384,  521 

Trout,   Ratliflf  v.  6  J.  J.  Marsh. 

606,  68 

Troutman,  Singer  v.  49  Barb.  (N. 

Y.)  182,  207 

Trustees  of  Section  Sixteen  v.  MU- 

ler,  3  Ohio,  261,  216 

Tuckerman  v.  French,   7  Greenl. 

(Me.)  115,  157 

Tuckerman,  Kennebec  Bank  t\  5 

Greenl.  (Me.)  130,  296,  305 

Tucker  v.  Davis,  15  Ga.  573,  434 

Tucker,   Graves    v.   10  Smedes  & 

Mar.  (Miss.)  9,  353,  355 

Tucker  v.  Laing,  2  Kay  &  Johns. 

745,  212,  296 

Tucker  v.  State,  11  Md.  322,  32 


TABLE   OF   CASES. 


Cli 


Section 
Tucker  v.  Talbott,  15  Ind.  114,  352 
Tucker,  Waylandw.4  Gratt.  (Va.) 

267,  209,  245,  258 

Tucker  v.  White,  5  Allen,  322,  407 
Tudor  V.  Goodloe,  1  B.  Mon.  (Ky.) 

322,  309 

Tufts,  Bunker  v.  55  Me.  180,  179 

Tufts  V.   Plymouth  Gold  Mining 

Co.  14  Allen,  407,  66 

Tunis,  MHler  v.  10  Up.  Can.  C.  P. 

R.  423,  127 

Tunentine,  Trice  v.  5  Iredell   Law 

(So.  Car.)  236,  438 

Turbeville,  Harrison  v.  2  Humph. 

(Tenn.)  242,  336 

Turnour,  Morrison  v.  18  Vesey,  175,  75 
Turrill  v.    Boynton,  23    Vt.    142, 

309,  312 
Turton  v.  Burke.  4  Wis.  119,  63 

Tureman,  Ashby  v.  3  Littell  (Ky.) 

6,  412 

Tumey  v.  Penn,  16  111.  485,  115 

Turrell,   Carpenter    v.    100  Mass. 

450,  409 

Turk,  Crawford  v.  24  Gratt.  (Va.) 

176,  531 

Turley  v.  Hodge,  3  Humph.  (Tenn.) 

73,  35,  154 

Turscott,  Thomas  v.  53  Barb.  (N. 

Y.)  200,  352 

Turner,  Aldridge  v.  1  Gill  &  Johns. 

(Md.)  427,  6,  68 

Turner,  Bovill  v.  2  Chitty,  205,  137 
Turner  v.  Davies,  2  Esp.  478,  229 

Turner,  Dickerson  v.  15  Ind.  4,  156 
Turner,  Ferguson  v.  7  Mo.  497,  382 
Turner,  Griffith  r.  4  Gill  (Md.)lll,  520 
Turnure  v.  Hohenthal,  4  Jones  & 

Spencer  (N.  Y.)  79,  172 

Turner  v.  Hubbell,  2  Day  (Conn.) 

457,  '  40 

Turner,  Hubert  v.  4  Scott  (N.  R.) 

486,  75 

Turner,   Jones   v.   5  LitteU  (Ky.) 

147,  121 

Turner,  Kennebec  Bank  v.  2  Green- 
lief  (Me.)  42,  1? 
Turner,  Kirby  v.  6  John's  Ch.  R. 

242,  123 


Section 
Turner,   McCarter  v.  49  Ga.  309, 

17,  507 
Turner,  Mitchell  v.  37  Ala.  660,  245 
Twopenny  v.   Young,   3  Barn.  & 

Cress.  208,  320 

Twynam,   Coope  v.   1    Turner    & 

Ross  426,  224 

Tyus  V.  De  Jamete,  26  Ala.  280, 

234, 261 
Tyler,  Binz  v.  79  111.  248,  106 

Tyler,  Curtis  v.  9  Paige  Ch.  R.  432,  282 
Tyree  v.  Wilson,  9  Gratt.   (Va.) 

H  ■  458 

Tynt,  Tynt  v.  2  Peere  Wms.  542,  82 
Tyson  v.  Passmore,  2  Pa.  St.  122,  352 
Tyson,  Reno  v.  24  Ind.  56,  497 


Uhler  V.  Applegate,  26  Pa.  St.  140, 

306,  308 

Uhler  V.  Farmers  National  Bank, 
64  Pa.  St.  406,  9 

Uhler  V.  Semple,  5  C.  E.  Green  (N. 
J.)  288,  188 

Upton,  Locki-idge  v.  24  Mo.  184,      504 

Upton  V.  Vail,  6  Johns.  181,  59 

Ulen  V.  Kittredge,  7  Mass.  233,  76 

Underwood  v.  Campbell,  14  New 
Hamp.  393,  68 

Underwood  v.  Hossack,  38  111,  208, 

7,  8,  147 

Underwood,  Vartie  v.  18  Barb.  (N. 
Y.)  561,  22 

University  of  Cambridge  v.  Bald- 
win, 5  Mees.  &  Wels.  580,  99 

Union  Bank  v.  Beatty,  10  La.  An. 
378,  359 

Union  Bank  v.   Beech,  3  Hurl.  & 
Colt,  672,  123 

Union  Bank  r.  Clossey,  10  Johns. 
2:1,  479 

Union  Bank  v.  Coster's  Exrs.  3  New 
York,  203,  67,  73,  167,  173 

Union  Bank  v.  Forstall,  6  La.  (Cur- 
ry). 211,  368 

Union  City  Bank,   Garton  v.   34 
Mich.  279,  304 

Union  Bank  v.  Govan,  10  Smedes 
&  Mar.  (Miss.)  333,  21,  323,  378 


clii 


TABLE   OF   CASES. 


Section 

Union  Bank,  Gustine  v.  10  Robin- 
son (La.)  412,  325,  329 

Union  Bank  v.  McClung,  9  Humph. 
(Tenn.)  98,  304,  805 

Union  Bank,  Obcmdorff  v.  31  Md. 
126,  288 

Union  Bank  v.  Thompson,  8  Robin- 
son (La.)  227,  478,  479 

United  States  v.  Allsbury,  4  Wal- 
lace, 186,  107 

United  States  v.  Archer's  Exr.  1 
Wallace  Jr.  173,  117 

United  States,  Armstrongs  Peters' 
Cir.  Ct.  46,  443 

United  States  v.  Boecker,  21  Wal- 
lace, 652,  344 

United  States,  Broome  v.  15  How- 
ard (U.  S.)  143,  450 

United  States,  Boody  v.  1  Wood- 
buiy  &  Minot,  150,  469 

United  States  v.  Boyd,  5  Howard 
(U.  S.)  29,  522 

United  States  v.  Boyd,  15  Peters, 
187,  449 

United  States,  Bruce  v.  17  How. 
(U.S.)  437,  30,467 

United  States,  Burroughs  v.  2 
Paine,  569,  282 

United  States  v.  Cheeseman,  3 
Sawyer,  424,  142 

United  States  v.  Cochran,  2  Brock- 
enbrough,  274,  293 

United  States  v.  Corwine,  1  Bond, 
3:39,  Ul. 

United  States  v.  Cranston,  3  Cranch 
289,  483 

United  States  v.  Cushman,  2  Sum- 
ner, 426,  117 

United  States  v.  Cutter,  2  Curtis, 
617,  475,  521 

United  States,  Dan  v.  16  Wallace  1,  355 

United  States  v.   Eckford's  Exrs. 

1  Howard  v.  (U.  S.)  250,  294 
United  States,  Farrar  v.  5  Peters, 

373,  449 

United  States,  Findlay's  Exr's  v. 

2  McLean,  44,  27 
United  States  v.  Gaubsen  Exr.   2 

Woods,  92,  469 


Section 

United  States  v.  Hammond,  4  Bis- 
sell,  283,  349 

United  States  v.  Howell,  4  Wash- 
ington, 620,  313 

United  States,  Hunt  v.  1  Gallison, 
32,  377,  474 

United  States,  Hunter  v.  5  Peters, 
173,  377 

United  States  v.  Jones,  8  Peters, 
399,  362 

United  States  v.  Kershner,  1  Bond, 
432,  294 

United  States  v.  Kirkpatrick,  9 
Wheaton,  720,  474 

United  States  v.  Le  Baron,  19 
Howard  (U.  S.)  73,  450 

United  States  v.  Linn,  2  McLean, 
501,  294 

United  States  Bank,  Long  v.  1 
Freeman's  Ch.  R.  (Miss.) 
375,  405 

tjnited  States  v.  Mark's  Sureties, 
3  Wallace  Jr.  358,  516 

United  States  v.  Mason,  2  Bond, 
183,  444 

United  States  v.  Maurice,  2  Brock, 
96,  445 

United  States,  Myers  v.  1  McLean, 
493,  294,  499 

United  States  v.  Myndeise,  11 
Blatchford,  1,  443 

United  States  v.  Nicholl,  12  Wheat- 
on, 505,  475 

United  States,  Pawling  v.  4 
Cranch,  219,  357 

United  States,  Osborne  v.  19  Wal- 
lace, 577,  475 

United  States,  Sharp  v.  4  Watts 
(Pa.)  21,  357,  442 

United  States  v.  Simpson,  3  Pen. 
&  Watts  (Pa.)  437,  296 

United  States,  Smith  v.  2  Wallace 
(U.  S.)  219,  334 

United  States  v.  Spencer,  2  Mc- 
Lean, 405  449 

United  States  v.  Stansbury,  1  Pe- 
ters, 373,  377 

United  States  v.  Sturges,  1  Paine, 
525,  377 


TABLE   OF    CASES. 


cliii 


Section 

United  States  v.  Tillotson,  1  Paine, 
305.  3:30 

United  States  v.  Truesdell,  2  Bond, 
78,  145 

United  States  v.  Vanzandt,  II 
Wheaton,  184,  475 

United  States  v.  Wardwell,  5  Ma- 
son, 82,  461 

United  States  v.  White,  4  Wash- 
ington, 414,  451 

United  States,  Williams  v.  1  How- 
ard (U.  S.)  290,  522 

United  States  v.  Woodman,  1 
Utah,  265,  344 

United  States  v.  Wright,  1  Mc- 
Lean, 509,  460 

Unselt,  Wilson  v.  12  Bush  (Ky.) 
215,  499 


Vail  V.  Foster,  4  New  York,  312,     282 
Vail,  Upton  v.  6  Johns.  181,  59 

Valie,  Bean  v.  2  Mo.  103,  68 

Vallaton  v.  Gardner,  R.  M.  Charl- 
ton (Ga.)  86,  161 
Vallandingham,     Knox      v.      13, 

Smedes  &  Mar.  (Miss.)  526,  230 

Valentine  v.  Christie,  1  Robinson 

(La.)  298,  15 

Valentine,  Fullam  v.  11  Pick.  156,  425 
Vanzandt,    United    States    v.    11 

Wheaton,  184,  475 

Vananda,  State  v.  7  Blackf.  (Ind.) 

214,  487 

Van  Wart  v.   Carpenter,   21  Up. 

Can.  Q.  B.  R.  320,  97 

Vanmater,  Shook  v.  22  Wis.  507,    50 
Vaun,  May  v.  15  Fla.  553,  259 

Vann  v.  Pipkin,  77  Nor.  Car.  408,  487 
Van  Koughnet  v.  Mills,  5  Grant's 

Ch.  R.  653,  325 

Vandusen,  Shaw  v.  5  Up.  Can.  Q. 

B.  R.  353,  98 

Vandusen,  State  v.  5  Up.  Can.  Q. 

B.  R.  353,  98 

Vance  v.   Lancaster,  3  Haywood, 

(Tenn.)  130,  183 

Vance,  Suydam  v.  2  McLean,  99, 

321,  325 


67 

8 

115 

196 
66 


75 
295 

82 

147 


Section 
Vanderbergh  v.  Vanderbergh,  Law 

Rep.  1  Exch.  316, 
Vanderlyn,  Elting  v.  4  Johns.  237, 
Van   Annan,   Goles'  Admx.  v.  18 

Ohio,  336, 
Van   Campen,   Abbey  v.  1  Freem. 

Ch.  R.  (Miss.)  273, 
Van  Cortland,    Parkhurst   v.    14 

Johns.  15, 
Van  Derveer  v.  Wright,  6  Barb. 

(N.  Y.)  547,  SO,  119 

Van  Dusen,   Jackson  v.  5  Johns. 

144, 
Van  Dusen,  Sears  v.  25  Mich.  351, 
Van  Dusen,  Taylor  v.  3  Gray,  498, 
Van  Doren  v.   Tjader,  1  Nevada, 

380, 

Van  Epps  v.  Walsh,  1  Woods.  598.  470 
Van  Hook,  McCreary  v.  35  Tex. 

631,  9 

Van  Lear,  Dodge  v.  5  Cranch  C. 

C.  278,  66 

Van  Mierop,  Pillans  v.  3  Buit.  1663, 

9,  53,  68 
Van  Mater,  Shook  v.  22  Wis.  507,  46 
Van  Norden,  Washburn  v.  28  La. 

An.  768,  109 

Van  Nostrand,  Gardner  v.  13  Wis. 

543,  321 

Van  Orden  v.  Durham,  35  Cal.  136,  284 
Vanpelt,  Craig  v.  3  J.  J.  Marsh. 

(Ky.)489, 
Van  Reimsdyck  v.  Kane,  1  Galli- 

son  C.  C.  633, 
Van  Rensselaer,   Hamilton  v.  43 

New  York,  214, 
Van  Rensselaer,   Hamilton  v.  43 

Barb.  (N.  Y.)  117, 
Van  Rensselaer  v.  Kirkpatrick,  46 

Barb.  (N.  Y.)  194, 
Van  Rensselaer,   Livingston  v.  6 

Wend.  63, 
Van  Slyck  v.  Pulver,  Hill  &  Denio 

(Labor's  sup.)  47, 
Van  Volkenburgh,  WooUey  v.  16 

Kansas,  20,  106 

Van  Vorst's  Admr.  Morris  Canal 

&  Banking  Co.  v.  1  Zabriskie  (N. 

J.)  100,  343,  369,  479 


38 


53 


110 


92 


233 


50 


cliv 


TABLE   OF   CASES. 


Section 
Van  Wagenen,  Tappen  v.  3  Johns. 

465,  436 

Van  Wart  v.  Carpenter,   21   Up. 

Can.  Q.  B.  R.  320,  96 

Varrell,  Andrews  v.  46  NewHamp. 

17,  203 

Varnam  v.  Harris,  1  Hun  (N.  Y.) 

451,  23 

Vartie  v.  Underwood,  18  Barb.  N. 

Y. 561,  22 

Vaughan  v.  Evans,  1  HUl  Eq.  (So. 

Car.)  414,  467 

Vaugli,  Johnson's  Admrs.  v.  65  III. 

425,  256,  328 

Veazie  v.  Carr,  3  Alien,  14,  312 

Veazie  v.  WilUs,  6  Gray,  90,  359 

Vedder,  Albany  Dutch  Church  v. 

14  Wend.  165,  369 

Venables,  Han-is  v.   Law  Rep.  7 

Exch.  235,  8 

Vernon,  Peudexter  v.  9  Humph. 

(Tenn.)  84,  320 

Verret   v.    Belanger,    6    La.  An. 

109,  532 

Viele  V.  Hoag,  24  Vt.  46,  209,  210 

Viele  V.  Osgood,  8  Barb.  (N.  Y.) 

130,  66,  75 

Vilas  V.  Jones,  New  York,   274, 

209,  310 
Vilas  V.  Jones,   10  Paige  Ch.  R. 

76,  309 

Vilas,  People  v.  36  New  York,  459,  469 
Villars  v.  Palmer,  67  111.  204,  392 

Vinal  V.  Richardson,  13  AUen,  521, 

9,  172 
Vmeyard,    Prather  v.    4    Oilman 

(lU.)  40,  49 

Virden  v.  Ellsworth,  15  Ind.   144, 

115,  172 
Vivian  v.  Otis,  24  Wis.  518,  466 

Voiles  V.  Green,  43  Ind.  374,  332 

Volkenning,  PoOlon  i;.  11  Hun  (N. 

Y.)385,    "  524 

Voltz  V.  Harris,  40  lU.  155,  172,  173 
Von  Doren  v.  T^'ader,   1  Nevada 

380,  74 

Voorhees,  Paine  v.  26  Wis.  522,  318 
Voorhies  v.  Atlee,  29  Iowa,  49,  85 
Voria  v.  State,  47  Ind,  345,  493 


Section 
Voss  V.  Florida  R.  R.  Co.  50  New 

York.  369,  361 

Voss  V.  German  American  Bank,  58 

111,  599,  377 

Vredenburg,  Leonard  v.  8  Johns. 

29,  6,  7,  9,  68 

Vredenburg    v.  Snyder,    6    Iowa 

(Clarke)  39,  392 

Vredenbergh,    Waddington   v.    2 

Johns,  Cas.  227,  23 


Waddington   v.    Vredenbergh,    2 

Johns.  Cas.  227,  23 

Wade,  Bainbridge  r,  16  Ad.  &  EU. 

N.  S.  89,  68,  70,  72 

Wade  V.  Coope,  2  Simons,  155,  279 
Wade,  Dunn  v.  23  Mo,  207,  225 

Wade  V.  Green,  3  Humph.  (Tenn.) 

547,  185 

Wade,  Tatton  v.  18  Com,  B,  370,  59 
Wade    V.    Staunton,    5    Howard 

(Miss.)  631,  319 

Wade's  Exr,  Saffold  v.  61    Ala. 

214.  282 

Wadlington  v.  Gary,  7  Smedes  & 

Mar.  (Miss.)  522,  296,  308 

Wadlington,  MuUer  v.  5  Richard- 
son (N.  S.)  So.  Car,  342,  375 
Wadsworth  v.  Allen,  8  Gratt,  (Va.) 

174,  97,  165,  174 

Wadsworth,  Morris  v.  17  Wend. 

103,  169 

Waful,  Mosier  v.  56  Barb.  (N.  Y.) 

80,  84 

Wagner,  Mease  v.  1  McCord  (So, 

Car,)  395,  44 

Wagnon  v.   Clay,  1  A.  K,  Marsh, 

(Ky,)  257,  54 

Wain  V.  Warlters,  5  East,  10,  68,  71 
Wamwright  v.  Straw,  15  Vt,  215,  62 
Wait  V.  Wait,  28  Vt.  350,  53 

Wakeman  r.  Gowdy,  10  Bosw.  (N. 

Y.)  208,  384 

Wakeman  v.  Sutton,  2  Adol.  &  Ell. 

78,  77 

Wakeford,   Wright  v.   17  Vesey, 

454,  75 

Wakefield  v.  Greenhood,  29  Cal.  597,  60 


TABLE   OF   CASES. 


cl'v 


Section 
Wakefield   v.    McKinnell,    9  La. 

(Curry)  449,  428 

Wakefield,  Saunders  v.  4  Bam.  & 

Aid.  595,  6,  68 

Wakefield  Bank  v.  Truesdell,   55 

Barb.  (N.  Y.)  602,  305 

Waldo,  Riggs  v.  2  Cal.  485,  148 

Waldron   v.     Young,     9   Heisk. 

(Tenn.)  777,  333 

Walden,   Carney  v.   16  B.  Mon. 

(Ey.)  388,  111 

Walker  v.  Constable,  1  Bos.  &  Pul. 

306,  76 

Walker  v.  Hardman,  4  Clark  & 

FinneUy,  258,  107 

Walker,  Lysaght  v.  5  BHgh  (N.  R.) 

1,  70,  72,  287,  521 

Walker,  Lysaght  v.  2  Dow&  Clark, 

211,  70,521 

Walker  v.  Lathrop,  6  Iowa  (Clarke) 

516,  199 

Walker  v.   McKay,  2  Met.  (Ky.) 

294,  195 

Walker,  Pendlebury  v.  4  Younge  & 

CoU.  (Exch.)  424,  224,  350 

Walker  v.  Pierce,  21  Gratt.  (Va.) 

722,  518 

Walker,  Ontario  Bank  v.  1  Hill  (N. 

Y.)  652,  272 

Walker  v.  Richards,  41  New  Hamp. 

388,  64 

Walker  v.  Richards,  39  New  Hamp. 

259,  62,  77 

Walker  tJ.  Sherman,  11  Met.  (Mass.) 

170,  8 

Walker  v.  Tavlor,  6  Car.  &  Pa. 

752,  51 

Walker,  Wharton   v.  4  Barn.  & 

Cress.  163,  52 

Walker,  Wharton  v.  6  Dow.  &  Ry. 

288,  52 

Walker,  White  v.  31  111.  422, 

172,  211,  327,  336 
Wallace,  BeUume  v.  2  Rich.   Law 

(So.  Car.)  80,  213 

Wallace,  Glenn  v.  4  Strob.  Eq.  (So. 

Car.)  149,  463 

Wallace  v.  Hudson,  37  Tex.  456,        22 
Wallace  v.  Holly,  13  Ga,  389,  489 


Section 
Wallace,  Ordinary  v.  1  Richardson 

Law  (So.  Car.)  507,  532 

Wallace,  Ordinary  v.  2  Richardson 

Law  (So.  Car.)  460,  532 

Waller  v.  Campbell,  25  Ala.  544,  246 
Waller,  1  Coleman  v.  Younge  & 

Jer.  212,  362 

Waller,  Ennis  v.  3  Blackf.  (Ind.) 

472,  76 

Waller,    McKenny's    Exrs.    v.    1 

Leigh  (Va.)  434,  382 

Wallers'  Heirs,  Moore  v.  1  A.  K. 

Marsh.  (Ky.)  488,  126 

Wall,  Carpenter  v.  4  Dev.  &  Batt. 

(Nor.  Car.)  144,  53 

Wall,  Swain  v.  1  Reports  in  Chan- 
cery, 149,  252 
WaJmsIy,  Lawrence  v.  12  J.  Scott 

(N.  S.)799,  315,350 

Walrath  v.  Thompson,  6  Hill,  540,  345 
Walrath  v.  Thompson,  4  HiU,  200,  72 
Walsh  V.  Bailie,  10  Johns.  180,  97 

Walsh,  Gardner  v.  5  Ellis  &  Black. 

83,  332 

Walsh,  Van    Epps  v.   1  Woods, 

598,  470 

Walton,  Anderson  v.  35  Ga.  202,  193 
Walton,  Clay  v.  9  Cal.  328,  56 

Walton    V.  MascaU,   13  Mees.  & 

Wels.  72,  172 

Walton  V.  Mascall,   13   Mees.   & 

Wels.  452,  170 

Walters  v.  Swallow,  6  Wharton 

(Pa.)  446,  300,  305 

Wandel,  Supervisors  of  Richmond 

Co.  V.  6  Lansing,  (N.  Y.)  33, 

455,  476 
Wann  v.  People,  57  lU.  202,  473 

Wannemacher,  Lemed  v.  9  Allen, 

412,  66,  75 

Waples  V.  Derrickson,  1  Harring- 
ton (Del.)  134,  435 
Ware  V.  Stephenson,  10  Leigh  (Va.) 

155,  61 

Ware  v.  Adams,  24  Me.  177,  9 

Ware  ex  parte,  5  Richardson  Eq. 

(So.  Car.)  473,  273 

Wardlaw  v.   Harrison,    11    Rich. 

Law  (So.  Car.)  626,  159 


clvi 


TABLE   OF   CASES. 


Section 
Warden,  Green  v.  17  111.  278,  445 

Wardell,  Phyfe  v.  2  Edwaxds  Ch. 

47,  352 

Warden,  Barringer  v.  12  Cal.  311,  52 
Wardens  of  St.  Saviors  Soutliwark 

V.  Bostock,  5  Bos.  &  Pul.  175,       140 
Ward,  Armstead  t\  2  Patten,  Jr. 

&  Heath  (Va.)  504,  309,  317 

Ward  V.  Churn,   18  Gratt.  (Va.) 

801,  357 

Ward  V.  Ely,  1  Dev,  Law  (Nor. 

Car.)  372,  88 

Ward  V.  Henry,  5  Ct.  595,  180 

Ward,  Hayes  v.  4  Johns  Ch.  123 

82,  204,  205 
Ward  V.  Johnson,  6  Munf.  (Va.) 

6,  325 

Ward,  Lamonte  v.  36  Wis.  558,  424 
Ward,  McKecknie  v.  58  New  York, 

541,  322 

Ward  V.  Northern  Bank  of  Ken- 
tucky, 14  B.  Mon.  (Ky.)  283,  94 
Ward,  Reynolds  v.  5  Wend.  501,  307 
Ward  V.  Stout,  32  111.  399,  17,  20 
Ward,  Spear  v.  20  Cal.  659,  22 
Ward  f.  Wick  Bros.,  17  Ohio  St. 

159,  298 

WardweU,  United  States  v.  5  Ma- 
son, 82,  461 
Warfel  v.  Frantz,  76  Pa.  St.  88,       357 
Warfield,  Elder  v.  7  Harr.  &  Johns. 

(Md.)  391,  62,  63 

Warfield  v.  Ludewig,  9  Eobinson 

(La.)  240,  296 

Waring,  Couch  v.  9  Ct.  261,  124 

Warlters,  Warn  v.  5  East,  10,  68,  71 
Warner,  Admr's  of  Pond  v.  2  Vt. 

532,  190,  191 

Warner  f.  Beardsley,  8  Wend.  194,  206 
Warner  v.  CampbeU,  26  lU.  282,  305 
Warner,  Harris  v.  16  Wend.  400,  224 
Warner  v.  Morrison,  3  Allen,  556, 

223,  232 
Warner,  SneU  v.  63  111.  176,  180 

Warner  v.  Price,  3  Wend.  397,  223 
Warre  v.  Calvert,  2  Nev.  &  Per. 

126,  102 

Warre  v.  Calvert,  7  Adol.  &  Ell. 

143,  102 


Section 
Warren  v.  Barker,  2  Duvall  (Ky.) 

155,  59 

Warren  v.  Gilmore,  11  Cush.  15,  431 
Warren,   Rathbone   v.    10  Johns. 

587,  210,  425 

Warren  v.  State,  11  Mo.  583,  458 

Warring,  Richards  v.  4  Abbott's 

Rep.  Omitted  Cas.  47,  150 

Warrington   v.    Fui'bor,    8    East, 

242,  178,  180 

Warwick  v.  State,  5  Ind.  350,  493 

Washington,  Champonier  v.  2  La. 

An.  1,013,  404 

Washburn  v.  Van  Norden,  28  La. 

A^.  768,  109 

Washburn,  Wood  v.  2  Pick.  24,  127 
Washburn,  Wheeler  v.  24  Vt.  293,  32:3 
Waterman  v.  Clai-k,  76  m.'428,  203 
Waterman  v.  Meigs,  4  Cush.  497,  67 
Waterville  Bank  v.  Redington,  52 

Me.  466,  28 

Waters  v.  Creagh,  4  Stew.  &  Port. 

(Ala.)  410,  211 

Waters  v.  Carroll,  9  Yerger  (Tenn.) 

102,  453 

Waters,  Chambers  v.  7  Cal.  390,  420 
Waters  v.  Riley,  2  Harris  &  GiU 

(Md.)  305,  248 

Waters,  Rogers  r.  2  GiU  &  Johns. 

(Md.)  64,  54 

Waters  v.  Simpson,  2  Gilman  (lU.) 

570,  324 

Waterhouse,  Fielding  v.  8  Jones 

&  Spencer  (N.  Y.)  424,  235,  260,  370 
Watkins,   Hempstead   v.    6  Ark. 

(1  Eng.)  317,  206 

Watkins  v.  Perkins,  1  Ld.  Raym. 

224,  63 

Watkins,  State  Bank  v.  6  Ark.  (1 

Eng.)  123,  209 

Watkins  u.Worthington,  2  Bland's 

Ch.  R.  (Md.)  509,  200 

WatUngton,    Goss    v.  3  Brod.   & 

Bing.  132,  523 

WatUngton,    Goss    v.    6    Moore, 

355,  523 

Watriss  v.  Pierce,  32  New  Hamp. 

560,  25,  209,  337 

Watrous  V.  Chalker,  7  Conn.  224,      38 


TABLE    OF    CASES. 


Ch 


Section 
Watson   V.    Alcock,    4   De   Gex, 

Macn.  &  Gor.  242,  388 

Watson  V.  Alcock,  1  Smale  &  Gil- 

fard,  319,  388 

Watson  V.  Beabout,  18  Ind.  281,  115 
Watson,  Gardner  v.  13  lU.  347,  298 
Watson,  Goodyear  v.  14  Barb.  (N. 

Y.)  481,  271 

Watson,  Hamilton  v.  12  Clark  & 

FinneUy, 109,  365 

Watson  V.  Hurt,  6  Gratt.  (Va.)  633, 147 
Watson  V.  Jacobs,  29  Vt.  169,  48 

Watson,  Ludwig  v.  3  Oreg.  256,  9 

Watson,  Mills  v.  1  Sweeny  (N.  T.) 

374,  24 

Watson,  Penoyer  v.  16  Johns.  100,  97 
Watson  V.  Poague,  42  Iowa,  582,  290 
Watson  V.  Randall,  20  Wend.  201,  48 
Watson  V.  Read,   1   Cooper's  Cb. 

R.  (Tenn.)  196,  378 

Watson  V.   Rose's  Exrs.  51  Ala. 

292,  284 

Watson,  Sanders  v.  14  Ala.  198,  280 
Watson,  Screws  v.  48  Ala.  628,  423 
Watson  V.  Sutherland,  1  Cooper, 

Ch.  R.  (Tenn.)  208,  204 

Watson,   Thompson  v.   10  Yerg. 

(Tenn.)  362,  206 

Watson  v.  Whitten,  3  Richardson 

Law  (So.  Car.)  224,  501 

Watson's    Exrs.    McLaren    v.    26 

Wend.  425,  33 

Watt,  Wright  v.  52  Miss.  634,  373 

Watts,  Burch  v.  37  Texas,  135.  410 
Watts  V.  Pettit,  1  Bush  (Ky.)  154,  461 
Watts,  Reid  v.  4  J.  J.  Mai-sh.  (Ky.) 

440,  296 

Watts  V.  Shuttleworth,  7  Hurl.  & 

Nor.  353.  373,  387 

Watts  V.  Shuttleworth,  5  Hurl.  <fe 

Nor.  235,  352,  387 

"Wayland  v.  Tucker,  4  Gratt.  (Va.) 

267,  209,  245,  258 

Wayman,  Dorsey  v.  6  GHl  (Md.) 

59,  392 

Wayman,  State  v.  2  GiU  &  Johns. 

(Md.)  254,  93,  141 

Way  V.  Heam,  11  J.  Scott  (N.  S.) 

774,  303 


Section 
Way  V.  Lewis,  115  Mass.  26,  526 

Way  V.   Wright,   5  Met.  (Mass.) 

380,  431 

Wayne  v.  Com.  Natl.  Bank,  52  Pa. 

St.  343,  104,  367 

Wayne  v.  Kirby,  2  Bailey  Law  (So. 
•   Car.)  551,  209,  325 

Wayne  v.  Sands,  Freem.  531,  5 

Weatherwax,  Johnsons.  9  Kansas, 

75,  '  357, 405 

Weatherby  v.  Shackleford,  37  Miss. 

559,  412 

Weare  v.  Sawyer,  44  New  Hamp. 

198,  124,  352 

Weaver  v.   Shryock,    6    Serg.   & 

Rawle  (Pa.)  262,  117 

Weaver  v.  Tapscott,  9  Leigh  (Va.) 

424,  186 

Weaver,  White  ».  41  Dl.  409,  147 

Webb  V.  Anspach',  3  Ohio  St.  522,    457 
Webb  V.  Baird,  27  Ind.  368,  355 

Webb  V.  Hewitt,  3  Kay  &  Johns, 

4.38,  123,  329 

Weber,  Detroit  v.  26  Mch.  234, 

468,  474,  476 
Webster  v.  Cobb,  17  HI.  459,  33,  147 
Webster,  Commonwealth  v.  1  Bush 

(Ky.)  616,  430 

Webster,  Payne  v.  19  111.  103,  503 

Webster,  Pico  v.  14  Cal.  202,  530 

Wedgewood,  Inhabitants  of  Orono 

V.  44  Me.  49,  447 

Weeks  v.  Burton,  7  Vt.  67,  59 

Weed  V.  Bentley,  6  HiU  (N.  Y.) 

56,  201 

Weed  V.  Clark,  4  Sandf.  (N.Y.  Su- 
perior Ct.)  31,  71 
Weed,  Holmes  v.  24  Barb.  (N.  Y.) 

546,  187 

Weed  Sewing  Machine  Co.  v.  Ober- 

reich,  38  Wis.  325,  317 

Weed  Sewing  Machine  Co.  v.  Max- 
well, 63  Mo.  486,  128 
Weissman,  Schuster  v.  63  Mo.  552,  472 
Weiler  v.  Hoch,  25  Pa.  St.  525,  206 
Werner  v.  Bunbuiy,  30  Mich.  201,  514 
Weimar  v.  Shelton,  7  Mo.  237,  202 
Welchman,  Howard  Banking  Com- 
pany V.  6  Bosw.  (N.  Y.)  280,         125 


clviii 


TABLE   OF   CASES. 


Section 
Welch,  Bell  v.  9  Man.  Gr.  &  Scott, 

154,  71 

Welch.   Louisville  Manuf.   Co.  '■?•'. 

10  Howard  (U.   S.)    461,   103, 

173,  174 

Welch   V.  Seymour,  28    Ct.  387, 

119,  139 

Welsh  V.  Barrow,  9  Robinson  (La.) 

535,  443 

Welsh  V.  Welch,  4  Mauls  &  Sel. 

333,  189 

Weld,  Carrojl  v.  13  111.  682,  147,  153 
Weld,  Draper  v.  13  Gray,  580,  303 
Weld  V.  Nichols,  17  Pick.  538,  46,  58 
Welles,  Thomas  v.  1  Root  (Conn.) 

57,  60 

Welles,   Myers  v.  5  Hill  (N.  Y.) 

463,  317 

Welford  v.  Beezely,  1  Ves.  Sr.  6,  75 
Weller,  Oaksr.  16  Vt.  63,  174,  175 
Weller,  Oaks  v.  13  Vt.  106,  158 

Weller  v.  Ranson,  34  Mo.  362,  314 

Wells  V.   Girling,  1  Brod.  &  Bing. 

447;  Id.  4  Moore,  78,  11 

Wells  V.  Girling,  8  Taunt.  737,  116 
Wells  V.  Grant,   4  Yerg.  (Tenn.) 

491,  457 

Wells,  Hayes  v.  34  Md.  512,  298,  313 
Weils  V.  Mace,  17  Vt.  503,  189 

Wells  V.  Mann,  45  New  York,  327,  9 
Wells,  Merle  v.  2  Camp.  413,  134 

Wells  f.  Moore,  3  Robinson,  (La.) 

156,  108 

Wells    V.  Miller,   66  New  York, 

255,  228 

Wells,  Phillips  v.  2  Sneed  (Tenn.) 

154,  39  ^ 

Weils,  State  v.  8  Nevada,  105,  445 
Wellmans,  Pearl  v.  11  111.  352,  401 
Wellington,  Huntington  r.  12  Mich. 

1,  53,  59 

Welster  v.  Ela,  5  New  Hamp.  540,  67 
Wcnrick,     Commonwealth    v,     8 

Watts  (Pa.)  159,  495 

Wentworth,  Brigham  v.   11  Cush. 

123,  346 

Wentworth,  Goodall  v.  20  Me.  322,  231 
Wesley  Church  v.  Moore,    10  Pa. 

St.  273,  176,  199 


Section 
Westmoreland  Bank,  Ramsey  v.  2 

Pen.  &  Watts  (Pa.)  203,  *    387 

Westhead  v.  Sproson,    6  Hurl.  & 

Nor.  728,  9 

West    V.    Ashdown,   1  Bingham, 

164,  425 

West  V.  Belches,  5  Munford  (Va.) 

187,  234 

West  V.  Bank  of  Rutland,  19  Vt. 

403,  178 

West  V.  Chasten,  12  Fla.  315,  23,  192 
West,  Dunn  v.  5  B.  Mon.  (Ky.) 

376,  40 

West  V.  Laraway,  28  Mich.  464,  4 

Wes*^,  Springfield  Manf.  Co.  v.  1 

Cush.  388,  434 

WestfaU,    Chandler   v.  30  Texas, 

475,  147,  153 

WestfaU,    Kingsbury  v.  61  New 

York,  356,  79,  90,  339 

WestfaU,  Suydam  v.  2  Denio,  205,  156 
WestfaU,  Suydam  v.  4  HUl,  211,  156 
Western  N.  Y.   Life  Ins.   Co.   v. 

Clinton,  66  New  York,  326,  353 

Western  v.  Russell,  3  Vesey  &  Bea. 

187,  66,  75 

Western  Reserve  Bank,  Commer- 
cial Bank  v.  11  Ohio,  444,  27,  380 
Western  Reserve  Bank,  Baldwin 

V.  5  Ohio,  273,  299 

Western  Stage  Co.,  Whiting  v.  20 

Iowa,  554,  303 

Westphal ;;.  Moulton,  45  Iowa,  163,  88 
Wetherbee  v.  Potter,  99  Mass.  354,  33 
Wetherbee,  Trowbridge  v.  11  Al- 
len, 361,  38 
Wetherell,   Sigoumey   v.   6    Met. 

(Mass.)  553,  119,  319 

Wetmore,     Taylor    v.     10    Ohio, 

490,  97,  167 

Wetzel  V.  Sponsler's  Exrs.  18  Pa. 

St.  460,  206,  207 

Weymouth,  Bordelon  v.  14  La.  An. 

93,  317 

Wharton  v.  Duncan,  83  Pa.  St.  40,  370 
AVharton  v.   Walker,   4  Barn.  & 

Cress.  163,  52 

Wliarton  v.  Walker,  6  Dow.  &  Ry. 

288,  52 


TABLE   OF   CASES. 


clix 


Section 
Wharam,  Matson  v.  2  Terra  R.  80, 

61,  62,  63,  64 
Wheat  V.  Kendall,  6  New  Hamp. 

504,  19,  307 

AVheatley's  Heirs  v.   Calhoun,  12 

Leigh  (Va.)  264,  262 

Wheeler  v.  Collier,   Moo.  &.Mal. 

123,  67 

Wheeler  v.  Lewis,  11  Vt.  265,  84,  85 
Wheeler,   Mayfield    v.   37  Texas, 

256,  96,  157,  161 

Wheeler  v.  Mayfield,    31    Texas, 

395,  96 

Wheeler,   Reynold  v.  10  J.  Scott 

(N.  S.)  561,  225 

Wheeler     v.     State,    9    Heiskell 

(Tenn.)  393,  478,  518 

Wheeler,  Tillman  r.  17  Johns.  326,  150 
Wheeler  v.  Washburn,  24  Vt.  293,  323 
Wheeler,  Wilson  v.  29  Vt.  484,  302 
Wheeler  v.  Wheeler,  7  Mass.  169,  426 
Wheelock,    Cobum    v.    34  New 

York,  440,  252 

Wheelock,  Wood  v.  25  Barb.  (N. 

Y.)  625,  53 

Wheelock,  Yale  v.  109  Mass.  502,    128 
Wheelwrig-ht  v.  DePeyster,  4  Ed- 
ward's Ch.  R.  232,  22 
Wheelwright,  Loomer  v.  3  Sanford's 

Ch.  R.  135,  22 

Wheelwright  v.  Moore,  2  Hall  (N. 

Y.)  162,  7 

Wheler  v.  Newton,  2  Eq.  Cas.  44, 

c.  5,  75 

Whelan  v.  Keegan,  7  Irish  Com. 

Law  R.  544,  133 

Whitehead,  Amnions  v.  31  Miss. 

99,  400 

Whitehead,  Jones  v.  4  Ga.  397,  1,  512 
Whitehead,  Knight  v.  26  Miss.  245,  22 
Whitehead  v.  Peck,  1  Kelly  (Ga.) 

140,  185,  202 

Whitehead  v.  Woolfolk,  3  La.  An. 

42,  525 

Whitfield  V.  Hodges,  2  Gale,  127,  425 
Whitfield  V.  Hodges,    1  Mees.   & 

Wels.  679,  425 

Whitehurst  v.  Coleen,  53  111.  247,  514 
Whitworth  v.  Tilman,  40  Miss.  76,  187 


Section 
Whitridge  v.  Durkee,  2  Md.  Ch.  R. 

442,  205 

Whipple  V.  Briggs,  30  Vt.  Ill,  197 
^Vliipple  V.  Briggs,  28  Vt.  65,  179 

Whipple,  Dunphy  v.  25  Mich.  10,  458 
Whittle  V.  Skinner,  23  Vt.  531,  306 
Whinray,  Northwestern  R.  R.  Co. 

V.  1  Hurl.  &  Gor.  (10  Exch.)  77,    341 
Whiting    V.  Burke,   Law  Rep.  6 

Ch.  Appl.  Cas.  342,  222 

Whiting  V.  Burke,  Law  Rep.   10 

Eq.  Cas.  539,  222 

Whiting  V.  Clark,  17  Cal.  407,  296 

Whiting  V.  Western  Stage  Co.  20 

Iowa,  554,  303 

Whitmarsh    v.   Genge,  3  Man.  & 

Ryl.  42,  523 

Whitmarsh,  Gillett  v.  8  Add.  & 

Ell.  (N.  S.)  966,  361 

Whitman  v.  Bryant,  49  Vt.  512,        61 
Whitman,  First  Natl.  Bank  Mon- 
mouth V.  66  111.  331.  300,  352 
Whitman  v.   Gaddie,  7  B.   Mon. 

(Ky.)  591,  224 

Whitman,  Hartwell  v.  36  Ala.  712,  233 
Whitnash   v.  George,  8  Barn.    & 

Cres.  556,  523 

Wliitaker    v.   Crutcher,    5     Bush 

(Ky.)  621, 
Whitaker  v.  Kirby,  54  Ga.  277, 
Whitaker  v.  Rice,  9  Minn.  13, 
Whitaker,  WilHson  v.  2  Marshall, 


Whitaker,   Willison  v.   7    Taunt. 

53, 
Whittemore,  Hendrick  v.  105  Mass. 

23,  46, 

Whittemore  v.  Obear,  58  Mo.  280, 
AVhitehouse  v.  Hanson,   42  New 

Hamp.  9,  46, 

Whitehouse,  Hmde  v.  7  East,  558, 
Whitchoctt,    Johnson    v.   1    Roll. 

Abr.  24  PI.  33, 
Whiton  V.  Mears,  11  Met.  (Mass.) 

563,  148, 

Whiteford,  Buoley  v.  Hayes,  (Irish 

Rep.)  356, 
Whitcomb  v.  Kephart,  50  Pa.   St. 

85, 


6)> 
211 

120 

423 

425 

229 
3-50 

223 

76 


IGS 
71 
43 


clx 


TABLE   OF   OASES. 


Section 
"Whitcomb,  Lees  v.  5  Bing.  34,  71 

Whitney  v.  Allen,  21  Cal.  233,  403 
Whitney  v.  Groot,  24  Wend.  82, 

137,  167 
"Whitney,  McKinney  v.  8  Allen, 

207,  59 

Wliituey  V.  Steams,  16  Me.  394,  70 
Whitney,  White  v.  51  Ind.  124,  309 
White  V.  Ault,  19  Ga.  551,  ^      21 

White  V.  Banks,  21  Ala.  705,  234 

White  V.  Blake,  22  Wend.  612,  429 
White,  Blake  r.  1  Younge  &  Coll. 

(Esch.j420,  305 

White  V.  Caiiton,  52  Ind.  371,  236,  249 
White  V.  Case,  13  Wend.  543,  83,  85 
White  V.  Cuyler,  6  Dum.  «fe  East, 

176,  215 

White  V.  Cuyler,  1  Esp.  200,  44 

^Tiite  V.  Cuyler,  6  Term  R.  176,  44 
AVbite,  Doyle  v.  26  Me.  341,  62 

White,  Easter  v.  12  Ohio  St.  219,  47 
White,  Exrs.  of  White  v.  30  Vt. 

338,  180 

White,  Gallagher  v.  31  Barb.  (N. 

Y.)  92,  85,  112 

White  V.  German  Natl.  Bank  of 

Memphis,  9  Heisk.  (Tenn.)  475,  518 
White,  Hall  v.  27  Ct.  488,  438,  525 
White,  Longpre  v.  6  La.  (Curry) 

388,  502 

White,  Maryatts  v.  2  Starkie,  101,  287 
White  V.  Miller,  47  Ind.  385,  176,  181 
^Vhite,  People  v.  11  111.  341,  392 

^Vhite,  Powell's  Exrs.  v.W  Leigh 

(Va.)  309,  273 

White  V.  Prigmore,  29  Ark.  208,  398 
White  V.  Proctor,  4  Taunt,  209,  76 

White  V.  Reed,  15  Conn,  457,  78,  136 
White,  Resgart  v.  52  Pa.  St.  438,  1 
White,  Schloss  v.  16  Cal.  65,  483, 

White  V.  Smith,  33  Pa.  St.  186,  340 
White  V.  Smith,  2  Jones  Law  (Nor. 

Car.)  4,  406 

White,  Sneed's  Exrs.  v.   3  J.  J. 

Mar.  (Ky.)  525,  48 

White  V.  State,   1  Blackf.  (Ind.) 

557,  530 

White,  State  v.  10  Richai-dson  Law 

(So.  Car.)  442,  451 


Section 
AVhite,  Stone  v.  8  Gray,  589,  332 

White,  Tucker  v.  5  Allen,  322,         407 
White,  United  States  v.  4  Wash- 
ington, 414,  451 
White    V.    Walker,    31    111.  422, 

172,  211,  327,  336 
White  V.  Weaver,  41  lU.  409,  147 

White  V.  Whitney,  51  Ind.  124,  309 
White  V.  Woodward,   5  Com.  B. 

810,  9,  70 

White's  Exrs.  v.  Commonwealth, 

30  Pa.  St.  167,  113 

Whittier  v.  Dana,  10  Allen,  326,  67 
Whittier,  Rowc  v.  21  Me.  545,  52 

Whiiten,  Watson  v.  3  Richardson, 

Law  (So.  Car.)  224,  501 

Whyle,  Evans  v.  5  Bing.  485,  102 

Whyle,  Evans  v.  3  Moore  &  Payne 

130,  102 

Whyte,  Goddard  v.  2  Giffard,  449,  263 
Wickham  v.   Wickham,  2  Kay  «fe 

Johns.  478,  57 

Wick  Bros.  Ward  v.  17  Ohio  St. 

159,  298 

Widener  v.  State,  45  Ind.  244,  481 
Wiggam,  Calvin  v.  27  Ind.  489,  309 
Wiggins,  Russell  v.  2  Stoiy  Rep. 

214,  67 

Wilcox,   Cooper  ?'.   2  Devereux  & 

Bat.  Eq.  (Nor.  Car.)  90,  378 

Wilcox  V.  Fairhaven  Bank,  7  Allen 

270,  206 

Wilcox,   McNutt  V.   1   Freeman's 

Ch.  R.  (Miss.)  116,  27 

Wilcox,    McNutt    V.    3   Howard 

(Miss.)  417,  406 

Wilcox,     Sage    v.    6    Conn.     81, 

8,  39,  68,  168 
WUcox  V.  Todd,  6i  Mo.  388,  22 

Wilcox,  AVise  v.   1   Day,    (Conn.) 

22,  59 

Wilcox,  Woodward  v.  27  Ind.  207,  50 
Wild  Cat  Branch  v.  Ball,  45  Ind. 

213,  357 

Wilde  V.  Haycraft,  2  Duvall  (Ky.) 

309,  135 

WUde  V.  Jenkins,  4  Paige,  481,  23 

Wildes  V.    Savage,  1   Story,    22, 

163,  167,  173 


TABLE    OF   CASES. 


clxi 


Section 
Wildin,  Tayleur  v.  Law  Rep.  2 

Exch.  303,  90,  137 

Wiley  V.  Blghi,  39  Mo.  130,  310 

Wiley  V.  Roberts,  27  Mo.  388,  66 

WHe  V.  Wright,  32  Iowa,  451 ,  216 
Wilkins,  Bittick  v.  7  Heisk.  (Tenn.) 

307,  277 

Wilkins,  Holbrow  v.  2  Dow.  &  Ry. 

59,  172 

Wilkins,   Holbrow  v.  1   Barn.  & 

Cress.  10,  172 

Wilkins,  Jarvis  v.  7  Mees.  &  Wels. 

410,  70 

Wilkins,  Talbot  v.  31  Ark.  411,  260 
Wilkins'  Admr.  Carlisle  v.  51  Ala. 

371,  283 

Wilkinson  v.  Evans,  Law  Rep.   1 

C.  P.  407,  66 

Wilkinson,  Taylor  v.  1  Neville  & 

Perry,  629,  435 

Williamson,  Dumont  v.   18  Ohio 

St.  515,  16 

Williamson  v.  Howell,  4  Ala.  693,  532 
Williamson,    Lasher   v.    55    New 

York,  619,  203 

Williamson,  Mitchell  v.  6  Md.  210, 

82,  392 
Williamson's   Admr.     Hall   v.    9 

Ohio  St.  17,  411 

WilUamson's    Admr.    r.    Hall,    1 

Ohio  St.  190,  411 

Williamson's     Admr.     v.    Rees's 

Admr.  15  Ohio,  572,  259 

Willison  V.  Whitaker,  7  Taunt.  53,  425 
WilUson  V.  Whitalver,  2  Marshall, 

383,  425 

Willace  v.  Jewell,  21  Ohio  St.  163,  332 
Willis,  Bartlett  v.  3  Mass.  86,  12 

Willis  V.  Davis,  3  Minn.  17,  370 

WilUs    V.  Ives,    1    Sm.    &    Mar. 

(Miss.)  307,  18 

Willis,  Veazie  v.  6  Gray,  90,  359 

Willis  V.  WiUis,  17  Simons,  218,  348 
Williams  V.  Bacon,  2  Gray,  387,  66,  76 
Williams  v.  Bosson,  11  Ohio,  62,  156 
Williams,  Brettel  v.  4  Wels.  Hurl. 

&  Gor.  623,  10,  66,  73 

Williams,  Connor  v.  Rob.  (N.  Y.) 

46,  52 


Section 
Williams  v.  Cheny,  3  Gray,  215,  191 
Williams    r.    Covilland,    10    Cal. 

419,  318 

Williams,  Dwight  v.  4  McLean, 

581,  84 

Williams      ex    parte,     4     Yerg. 

(Tenn.)  579,  61,  62 

Williams  v.  Ewing,  31  Ark.  229,  248 
Williams    v.    Gilchrist,     11    New 

Hamp.  535,  290 

Williams     v.     Granger,    4    Day 

(Conn.)  444,  170 

Williams    v.    Greer,    4  Haywood 

(Tenn.)  235,  '  184 

Williams,  Gregory  v.  3  Meriv.  582,  58 
Williams  v.  Helme,   1  Dev.  Eq. 

(No.  Car.)  151,  196 

Williams,  Hogshead  v.  55  Ind.  145,  208 
Williams,  Hutton  v.  35  Ala.  503,  76 
Williams,    James   v.    3   Nev.    & 

Man.  196,  68 

Williams,  James  v.  5  Nev.  &  Man. 

196,  71 

Williams,   James  v.    5    Barn.    & 

Adol.  1109,  71 

Williams,  Kellar  v.  10  Bush  (Ky.) 

216,  227, 395 

Williams  v.  Ketchum,  19  Wis.  231,  70 
Williams,  Kingsbury  v.  53  Barb. 

(N.  Y.)  142,  339 

Williams  V.  Lake,  2  Ell.  &  Ell.  349,  67 
Williams  v.  Leper,  3  Burr.  1886; 

Id.  2  Wills,  308,  49,  50,  51,  54 

Williams,  Lossee  v.  6  Lans.  228,  9 

Williams    v.    Marshall,   42  Barb. 

524,  9,  127 

Williams  v.  ]\Iartin,  2  Duvall  (Ky.) 

491,  318 

Williams,  Nelson  v.  2  Dev.  &  Bat. 

Eq.  (Nor.  Car.)  118,  379 

Williams  v.  Owen,  13  Simons,  597,  275 
Williams,  Parsons  v.  9  Ct.  236,  422 
Williams  r.  Perkins,  21  Ark.  18,  7 

Williams,  Pool  v.  8  Ired.  Law  (Nor. 

Car.)  286,  236 

Williams,   Prior  v.   3  Abb.    Rep. 

Om.  Cas.  624,  118 

Williams  v.    Rawlinson,  Ryan  & 
Moody,  233,  133 


clxii 


TABLE   OF   CASES. 


Section 
Williams    v.    Eeynolds,    11     La. 

(Curry)  230,  113,  295 

Williams,  Rose  v.  5  Kansas,  483, 

17,  805 
Williams  v.  Smith,  48  Me.  135,  305 
Williams,  Stringfellow  v.  6  Dana 

(Ky.)  236,  380 

Williams,  Thomas  v.  10  Bam.  & 

Cress.  6G4,  9,  38,  54 

Williams    v.   Tipton,   5    Humph. 

(Tenn.)  66,  195,  266 

Williams  v.  Townsend,  1  Bosworth 

(N.  Y.)  411,  320 

Williams  v.  United  States,  1  How- 
ard (U.  S.)  290,  522 
Williams,   Womell  v.    19  Texas, 

180,  391 

Williams,  Woodz;.  61  Mo.  63,  461 

Williams  v.  Wood,  16  Md.  220,    75,  76 
Williams   v.  Wright,    9   Humph. 

(Tenn.)  493,  825 

Williams' Admr.  Williams'  Admr. 

V.  5  Ohio.  444,  177,  199 

Wilmot,   Bank  of   Toronto  v.  19 

Up.  Can.  Q.  B.  R.  73,  341 

Wilsey,  Rankin  v.  17  Iowa,  463,      285 
Wilson  V.  Bank  of  Orleans,  9  Ala. 

8-17,  303 

Wilson  V.  Bevans,  58  111.  232,      49,  53 
Wilson,  Blackwell  v.  2  Richardson 

Law  (So.  Car.)  322,  428 

Wilson,    Bomar  v.   1  Bailey  Law 

(So.  Car.)  461,  443 

Wilson  V.   Brown,   2  Beasley,  (N. 

J.)  277,  260 

Wilson  V.  Burfoot,  2  Gratt.  (Va.) 

134,  447 

Wilson  V.  Campell,  1  Scam.  (111.) 

493,  82 

Wilson,  Coffman  v.  2  Met.  (Ky.) 

542,  349 

Wilson  v.  Coupland,  5  Barn.  &  Aid. 

228,  52 

Wilson  V.  Dawson.  52  Ind.  613,        376 
Wilson,  Donally  v.  5  Leigh  (Va.) 

3-^9,  291 

Wilson  V.  Edwards,  6  Lansing  (N. 

Y.)  134,  102 

Wilson  V.  Foot,  11  Met.  285,        17,  20 


Sectiok 
Wilson,  Freeholders  of  Warren  v. 

1  Harrison,  (N.  J.)  110,  466 

Wilson  V.  Glover,  3  Pa.  St.  404,  476 
Wilson,  Gregg  v.  50  Ind.  490,  82 

Wilson  V.  Hart,  7  Taunt.  295,  76 

Wil.on,  Kaufman  v.  29  Ind.  604,  504 
Wilson,   Kemmerer  v.  31  Pa.  St. 

110,  384 

Wilson   V.    Langford,   5  Humpli. 

(Tenn.)  320,  809 

Wilson  V.  Lloyd,  Law  Rep.  16  Eq. 

Cas.  60,  23,  829 

Wilson  V.  Marshall,  15  Irish.  Com. 

Lew  Rep.  466,  65 

Wilson  V.  Martin,  74  Pa.  St.  159,  74 
Wilson,  Payne  v.  7  Barn.  &  Ores. 

423,  9 

Wilson,   Pritcliett    v.    89    Pa.  St. 

421,  361 

Wilson,  Ross  v.  7  Smedes  &  Mar. 

(Miss.)  753,  282 

Wilson,  Sloan  v.  4  Harr.  &  Jolms. 

322,  68 

Wilson  V.  Stilwell,  9  Ohio  St.  467,  82 
Wilson  V.  Tebbetts,  29  Ark.  679, 

509,  512 
Wilson,  TjT-ee  v.  Gratt.  (Va.)  59,  458 
Wilson  V.  Unselt,   12  Bush  (Ky.) 

215,  499 

Wilson,  Win  gate  v.  53  Ind.  78,  325 
Wilson  V.  Wheeler,  29  Vt.  484,  302 
Wilson's  Exr.  Thompson  v.  13  La. 

(Curry,)  138,  180 

Wilson    Sewing   Machine    Co.  v. 

Schnell,  20  Minn.  40,  66,  73 

Willard  v.  Fralick,  31  Mich.  431,  515 
Willey,  City  of  Maquoketa  v.  35 

Iowa,  323,  881 

Willey  V.  Thompson,  9  Met.  (Mass.) 

329,  318 

Wilmarth,    Johnson   v.    13  Met. 

(Mass.)  416,  173 

Wiltmer  v.  EUison,  72  111.  301,  327 
Winneshiek  Co.   v.  Maynard,   44 

Iowa,  15,  478 

Windom,   Lamberton  v.  18  Minn. 

506,  384 

Wingate,  Harlan  v.  2  J.  J.  Marsh. 

(Ky.)  138,  209 


TAELE   OF   CASES. 


clxiii 


Section 
Wingate  v.  Wilson,  53  Ind.  78,  325 
Winstons,    Bullitt's     Exrs.    v.    1 

Munf.  (Va.)  269,  326 

Winter,  Smith  v.  4  Mees.  &  Wels, 

454,  300 

Winterrowd,  Hamilton  v.  43  Ind. 

393,  305 

Winder  v.  DifFenderfer,  2  Bland's 

Ch.  (Md.)  166,  260 

Winham  v.  Crutcher,  2  Tenn.  Cli. 

R.  (Cooper) 535,  82 

Winslow  Inlia»bitants  of,  Hudson 

V.  6  Vroom,  (N.  J.)  437,  32 

Winston   v.   Fenwick,   4  Stew.  & 

Port.  (Ala.)  269,  80 

Winston  v.  Rives,  4  Stew.  &  Port. 

(Ala )  269,  394 

Winston  i'.  Yeargin,  50  Ala.  340,     378 
Winstanle}',    Kastner  f.     20   Up. 

Can.  C.  P.  R.  101,  78,   162 

Wintersoll  v.    Commonwealth,    1 

Duvall  (Ky.)  177,  433 

Winckworth  v.  MiUs,  2  Esp.  484.       46 
Wing    V.    Terry.    5  Hill   (N.  Y.) 

180,  156 

Win,  Stephens  v.  2  Nott  &  McC. 

372,  68 

Winn,  Dodd  v.  27  Mo.  501,  383 

Wise,  Levy  v.  15  La.  An.  38,      11,  536 
Wise,   Parker  v.  6  Maule  &  Sel. 

239,  103 

Wise  V.  Ray,  3  Greene  (Iowa)  430,     75 
Wise  V.  Shepherd,  13  111.  41,  276 

Wise  V.  Wilcox,  1  Day  (Conn.)  22,     59 
Wiseman,  Fetrow  v.  40  Ind.  148, 

3,  392 
Wisener,  Polk  v.  2  Humph.  (Tenn.) 

520,  502 

Wiswall,  Jarman  v.  9  E.  C.  Green 

(N.  J.)  267,  116 

Withers,  Pulliam  v.  8  Dana  (Ky.) 

98,  8,  332 

Withers,  Samuel  v.  16  Mo.  532,        363 
Witherly    r.    Mann,     11     Johns. 

518,  181 

Withrow,  Feamster  v.  9  West  Va. 

296,  182 

Witner,    Hill   v.    2    Philadelphia 

(Pa.)  72,  21 


Section 
Wittmer  v.  ElUson,  72  111.  301,  309 
Wittier,   Stoops    v.   1   Mo.   Appl. 

Rep.  420,  524 

Wodenhouse,    Farebrother    v.   23 

Beavan,  18,  279 

Wolbert,  Commonwealth  v.  6  Bin- 

ney  (Pa.)  292,  474 

Wolf  V.  Bannmg,  3  Minn.  202,  22 

Wolf  V.  Finks,  1  Pa.  St.  435,  299 

Wolf,  People  V.  16  Cal.  385,  537 

Vv^olf,  Rudy  V.  16  Serg.  &  Rawle, 

(Pa.)  79,      -  84,  85 

Wolfe  V.  Brown,  5  Ohio  St.  304,  173 
Wolff  V.  Koppel,  2  Denio,  :;  68,  57 

Wolff  r.  Koppel,  5  Hill,  458,  57 

Woldridge  v.  Norris,  Law  Rep.  6 

Eq.  Cas.  410,  192 

WoUeshlare  v.  Searles,  45  Pa.  St. 

45,  207 

Wonterline,  Burks  v.  6  Bush  (Ky.) 

20,  363 

Woodley,  Gorrie  v.  17  Irish  Com. 

Law  R.  221,  70,  75 

Woodbury    v.    Bowman,    14    Me. 

154,  190 

Woodall,   Pennington  ?'.   17  Ala. 

685,  18B 

Woodburn    v.     Carter,     50    Ind. 

376,  305 

Woodman  v.  Mooring,  3  Dev.  Law 

(Nor.  Car.)  237,  289 

Woodman,  United  States  v.  1  Utah, 

265,  344 

Woodville,  Ross  v.  4  Munf.  (Va.) 

324,  359 

Woodard,   Sherrod  v.  4  Devereux 

Law  (Nor.  Car.)  360,  259 

Woodbridge,  McGuire  r.  6  Robin- 
son (La.)  47,  312 
Woodbridge   r.  Scott,  3  Brevard 

(So.  Car.)  193,  191 

Woodcock  ».  Oxford  &  Worcester 

R.  R.  Co.  1  Drewry,  521,  334 

Woodcock,  Shaw  v.  7  Barn.  &  Cres. 

73,  38 

Wood  gate,  Devlin  v.  34  Barb.  (N. 

Y.)  252,  53 

Woodson  V.  Johns,  3  Munf.  (Va.) 

230,  412 


clxiv 


TABLE   OF   CASES. 


Section 
Woodson    V.   Moody,   4    Humph. 

(Tenn.)  303,  1"3 

Woodson,  Overton  v.  17  ilo.  453,  498 
AVoodstock  Btuik  v.  Downer,  27  Vt. 

539,  106,  170,  175 

Woodworth  v.  Bowes,  5  Ind.  (3 

PorL )  276,  222 

Woodward  v.  Clegge,  8  Ala.  317,  371 
Woodward,   Grafton    Bank    v.    5 

Kow  Hamp.  99,  309,  312 

Woodward  v.  Moore,  13  Ohio  St. 

13n,  526 

Woodward,  White  v.  5  Com.  B. 

810.  9,  "iO 

Woodward  r.  Wilcox,  27  Ind.  207,  50 
Wood,  Allen   v.  3  Ired.  Eq.  (Nor. 

Car.)  386,  254 

Wood  V.  Barstow,  10  Pick,  368,  82 
Wood  V.  Beach.  7  Vt.  522,  72 

Wood  V.  Benson,  2  Tyrwh.  93  38 

Wood  V.  Benson,  2  Cromp.  &  Jer. 

94,  9,  38 

Wood,  Binsse  v.  37  New  York,  526,  91 
Wood  V.  Brett,   9  Grant's  Ch.  R. 

452,  123 

Wood,  Claremont  Bank  v.  10  Vt. 

582,  28 

Wood  V.  Cook,  31  111.  271,  489 

Wood  V.  Corcoran,  1  Allen  (Mass.) 

405,  48 

Wood,  Cro>s  r.  30  Ind.  378.  309 

Wood  p.  Dwarris,  11  Exch.  493,  352 
Wood,  Eberhardt  v.   2  Tenn.  Ch. 

R.  (Cooper)  488,  240 

Wood  V.  Fisk,  63  New  York,  245,  117 
Wood,  Justices  v.  1  Kelly  (Ga.) 

84,  467 

Wood  V.  Leland,    1   Met.    (Mass.) 

387,  259 

Wood  V.  Newkirk,  15  Ohio  St.  295,  307 
Wood  V.  Perry,  9  Iowa,  479,  257 

Wood  V.  Priestner,   Law  Rep.   2 

Exch.  66,  78,  131 

Wood  V.   Priestner,   Law  Rep.   2 

Exch.  282,  131 

Wood,  Ralston  r.  15  111.  159,  249,  532 
Wood  V.  Washburn,  2  Pick.  24,  127 
Wood  V.  Wheelock,  25  Barb.  (N. 

Y.)  625,  53 


Section 
Wood,  Williams  v.  16  Md.  220,  75 

Wood  V.  Williams,  61  Mo.  63,  401 

Woods,  Hart  v.  7  Blackf.   (Ind.) 

568,  76 

Woods  t-.  Justices,  1   Kelly  (Ga.) 

84,  492 

Woods  V.  Sherman,  71  Pa.  St.  100,  85 
Woods,  Williams  v.  16  Md.  220,  76 
Wood's  Exrs.  Hocker  v.  33  Pa.  St. 

466,  124 

Wooldridge,  McGuire  v.  6  Robin- 
son (La.)  47,  296 
Woolfolk  V.  Plant,  46  Ga.  422,:202,  298 
Woolfolk,  Whitehead  v.  3  La.  An. 

42,  525 

Woolford  V.  Dow,  S4  111.  424,  307 

Woolley  V.  Jennings,   5  Bam.   & 

Ores.  165,  134 

Woolley,   Van   Volkenburgh,     16 

Kansas,  20,  106 

Woolworth  V.  Brinker,  11  Ohio  St. 


593, 


314,  325 


Woolf,  Combe  v.  8  Bing.  156,  296,  298 
Woolf,  Combe  v.  1  Moore  &,  Scott, 

241,  296,  298 

Wooster,  Strong  v.  6  Vt.  536,  370 

Wooten,   Buie,    v.  7    Jones    Law 

(Nor.  Car.)  441,  424 

Wootten,  Odell  v.  38  Ga.  224,  409 

Word,  Crawford  v.  7  Ga.  445,  485,  531 
Worel  V.  Morgan,  5  Sneed  (Tenn.) 

79,  384 

Worneford  v,  Worneford,  Strange, 

764,  75 

Wornell  v.  Williams,   19  Texas, 

180,  391 

Woirall  V.  Munn,   5  New  York, 

229,  75 

Worster,  Manufacturing  Co.  v.  45 

New  Hamp.  110,  526 

Worthington,  Watkins  v.  2  Bland's 

Ch.  R.  (Md.)  509,  200 

Wortendyke,   Receiver  of   N.    J. 

Midland  R.   R.   Co.  v.  27  New 

Jer.  Eq.  658,  266 

Worsham,  Moore  v.  5  Ala.  645,  293 
Woiihan  v.  Brewster,  30  Ga.  112,  308 
Worcester  Co.  Institution  v.  Davis, 

13  Gray,  531,  175 


TABLE   OF   CASES. 


clxv 


Section 
Worcester   Mech.    Sav.    Bank  v. 

Hill,  113  Mass.  25,  364 

Worcester  Bank  v.  Reed,   9  Mass. 

267,  146 

Worcester  Savings  Bank  v.  Hill, 

118  Mass.  25,  8 

Wotlen,  Odell  v.  4  Bankr.  Reg.  183,  409 
Wren  v.  Pearce,  4  Smedes  &  Mar. 

91,  7,  68,  86 

Wrenn,  Cunningham  xi.  23  111.  64,  350 
Wright's  Admr.  v.    Stockton,    5 

Leigh  (Va.)  153,  512 

Wright  V.  Austin,  56  Barb.   (N. 

Y.)  13,  292 

Wrights.  Bartlett,  43,  New  Hamp. 

548,  305, 329 

Wright,  Brooks  v.  13  AUen,  72,  304 
Wright,  Brown  v.  7  T.  B.  Monroe 

(Ky.)  396,  201 

Wright  V.  Dannah,  2  Camp.  203,  76 
Wright,  Dufau  v.  25  Wend.  636,  90 
Wright  V.  Dyer,  48  Mo.  525,  172 

Wright  V.  Flinn,  33  Iowa,  159,  94 

Wright  V.  Garlinghouse,  26  New 

York,  539,  156 

Wright  V.  Grover  &  Baker  S.  M. 

Co.  82  Pa.  St.  80,  269 

Wright,  Hardwick  v.  35  Beavan, 

133,  375 

Wright  V.  Harris,  31  Iowa,  272, 

335,  481 
Wright,  HHl  V.  23  Ark.  530,  180 

Wright  V.  Johnson,  8  Wend.  512,  345 
Wright  V.  Knepper,  1  Pa.  St.  361,  379 
Wright,  Lawson  v.  1  Cox,  275,  254 
Wright,  Martin  v.  6  Adol.  &  Ell. 

(N.  S.)  917,  131 

Wright,  Mayor  of  Birmingham  v. 

16  Ad.  &  Ell.  N.  S.  623,  145 

Wright,  McComb  v.  4  Johns.  Ch. 

659,  76 

Wright,  McWhorter  v.  5  Ga.  555,  213 
Wright,  Mechanics'  Bank  63  Mo. 

153,  17 

Wright  V.  Moriey,  11  Vesey  12,       280 
Wright  V.  Russell,  2  W.  Black- 
stone,  934,  99 
Wright    V.  Sewall,   9    Robinson, 

(La.)  128,  106 


Section 
Wright  V.  Sunpson,  6  Vesey,  714,  205 
Wright,  State  v.  37  Iowa,  522,  436 
Wright  V.  Stoers,  6  Bosw.  (N.  Y.) 

600,  299 

Wright,  United  States  v.  1  Mc- 
Lean, 509,  460 
Wright,  Van  Derveer  v.  6  Barb. 

(N.  Y.)  547,  80,  119 

Wright  V.  Wakeford,   17  Vesey, 

454,  75 

Wright  V.  Watt,  52  Miss.  634,         378 
Wright,  Way  v.  5  Met.  (Mass.) 

380,  431 

Wright,   Williams  v.    9  Humph. 

(Tenn.)  493,  325 

Wright,  Wile  v.  32  Iowa,  451,         216 
Wuff  V.  Jay,  Law  Rep.  7  Queen's 

B.  756,  386,  389 

Wyatt,  Crosby   v.    23   Me.    156, 

226,  259,  305 
Wyatt,  Crosby  v.  10  New  Hamp. 

318,  259,  299,  305 

Wybrants  v.  Lutch,  24  Texas,  309,   322 
Wyche  v.  Myrick,  14  Ga.  584,  521 

Wyke  V.  Rogers,  1  De  Gex,  Macn. 

&  Gor.  408,  318,  329 

Wyhe,  Brevard  v.  1  Richardson's 

Law  (So.  Car.)  38,  526 

Wylie  V.  Gallagher,  46  Pa.  St.  205,  446 
Wyman  v.  Gray,  7  Harris  &  Johns. 

(Md.)  409,  54 

Wyman,  Larson  v.  14  Wend.  246, 

62,  64 
Wymond,Tate  v.  7  Blackf.  (Ind.) 

240,  327 

Wynn  v.  Brooke,  5  Rawle  (Pa.)  106, 187 
Wynn,   Green  v.   Law  Rep.  4  Ch. 

Appl.  Gas.  204,  123 

Wynn,   Green  v.  Law  Rep.  7  Eq. 

Cas.  28,  123 

Wythes  v.  Labouchere,  3  De  Gex  & 

Jones,  593,  19,  365 


Yale  V.  Dederer,  18  N.  Y.  265,  4 

Yale  V.  Edgerton,  14  Mmn.  194,  9 

Yale  V.  'V\Tieelock,  109  Mass.  502,    128 
Yancey  v.  Brown,  3  Sneed  (Tenn.) 
89,  167 


clxvi 


TABLE  OF  CASES. 


Section 
Yantis,  Letcher's  Admr.  v.  3  Dana 

(Ky.)  160,  512 

Yarborough,  Kainey  v.  2  Ired.  Eq. 

(Nor.  Car.)  249,  254 

Yarborough,  Perry  v.  3  Jones'  Eq. 

(Nor.  Car.)  66,  195 

Yates,  Bartley  v.  2  Hen.  &  Mim. 

(Va.)  398,  15 

Yates  t'.  Donaldson,  5  Md.  389,  17 
Yates,  Greenfield  v.  2  Rawle  (Pa.) 

158,  101 

Yates,  Kincaid  v.  63  Mo.  45,  333 

Yates  V.  Plaxton,  3  Levinz,  235,  435 
Yazoo  City,  Mann  v.  31  Miss.  574,  522 
Yeary  v.  Smith,  45  Texas,  56,  296 

Yearborough's  Admr.  Pickens  v. 

26  Ala.  417,  384 

Yeargain,   Jones  v,  1  Dev.   Law 

(Nor.  Car.  420,  16 

Yeargin,  Winston  v.  50  Ala.  340,  378 
Yerby  v.  Grigsby,  9  Leigh  (Va.) 

387,  75,  76 

Yeomans,  M'DoaJ  v.  8  Watts,  (Pa.) 

361,  83 

Yingling,  Treauer  v.  37  Md.  491,  386 
Yongue  v.  Linton,  6  Rich.  Law  (So. 

Car.)  275,  219 

York  Co.  M.  F.  Ins,  Co.  v.  Brooks, 

51  Me.  506,  355,  358 

York  V.  Landis,  65  Nor.  Car.  585,  195 
Young,    City    Bank  v.    43    New 

Hamp.  457,  386 

Young  V.  Clark,  2  Ala.  264,  252 

Young,  Dole  v.  24  Pick,  250,  175 

Young,  Green  v.  8  Greenl.  (Me.)  14,  113 
Young,  Harris  v.  40  Ga.  65,  9 

Young,  Hasleham  v.  5  Ad.  &  Ell, 

(N.  S.)  833,  10 


Section 
Young,  Helm's  Admr,  v.  9  B.  Mon. 

(Ky.)  394,  283 

Young,  Kuns'  Exr.  v.  34  Pa.  St. 

60,  128 

Young  V.  Lyons,  8  (Md.)  Gill  162, 

252,  255,  256 
Young,  Oxley  v.  2  H.  Blackstone, 

613,  212 

Young  V.  Pickens,  45  Miss.  553,       419 
Young,  Sasscer  v.  6  Gill.  &  Johns, 

(Md.)  243,  380 

Young,  Seaverw.  16  Vt.  658,  213 

Young,  State  v.  23  Minn.  551, 

14,  4G3,  478 
Young  V.  State,  7  Gill.  &  Johns. 

(Md.)  253,  442 

Young,  ITiompson  v.  2  Ohio,  335,     143 
Young,  Twopenny  v.   3  Barn.   & 

Cress.  208,  320 

Young,    Waldron    v.     9     Heisk. 

(Tenn.)  777,  333 


Zacharie's   Succession,   Reynes    v. 

10  La,  (Curry)  127,  320 

Zachery,   Samuel  v.  4  Ired.  Law 

(Nor.  Car.)  377,  252 

Zane  v.  Kennedy,  73  Pa.  St.  182,  295 
Zeilsdorff,   Ketchum    v.    26    Wis. 

514,  420 

Zent's  Exrs,  v.  Heart,  8  Pa,  St, 

337,  120 

Zimmerman,  Judah  v.  22  Ind.  388,  347 
Zimmerman  v.  Judah,  13  Ind.  286,  347 
Zrak,  Johnson  v.   61   New  York, 

333,  24 

Zollar  V,  Jarvein,  49  New  Hamp. 

114,  409 


THE  LAW  OF 

SURETYSHIP   AND   GUARANTY. 


CHAPTER  I. 


OF    THE    CONTKACT. 


Section. 

Wliat  is  a  surety  or  guarantor ; 
difference  between  tliem   .        .      1 

Origin  and  requisites  of  the  con- 
tract   2 

When  guaranty  by  infant,  rail- 
road company  and  bank  valid, 
and  by  city  void        ...      3 

When  married  woman  may  be- 
come surety  by  virtue  of  stat- 
ute. When  statute  says  party 
shall  not  be  i-eceived  as  surety, 
he  is  nevertheless  bound  if  he 
is  received  as  such     ...      4 

When  duress  a  defense  to  suretj^ 
or  guarantor      ....      5 

There  must  be  a  consideration  to 
support  the  contract;   instances      6 

Executory  consideration  to  princi- 
pal alone  sufficient    ...      7 

A  greement  by  creditor  to  forbear 
towards  principal  sufficient       .      8 

Executed  consideration  to  princi- 
pal not  sufficient;  damage  to 
creditor  sufficient       ...      9 

How  far  partner  can  bind  firm  or 
agent  can  bind  principal  as 
surety  or  guarantor  .        .        .10 

Where  act  of  principal  is  pro- 
hibited by  law  or  is  fraudulent, 
surety  not  bound       .  .11 

Voluntary  bond  not  required  by 


Section 
law  or  different  from  bond  re- 
quired valid       .        .        .        .12 

Voluntary  bond  binds  surety        .     13 

Obligation  of  surety  must  be  de- 
livered and  takes  effect  from 
time  of  delivery 

Surety  bound  when  his  name  not 
mentioned  in  body  of  instru- 
ment; not  bound  when  penalty 
of  bond  blank  .... 

When  party  liable  on  implied 
guaranty    

Joint  maker  of  note  may  be 
shown  by  parol  to  be  surety 

Joint  maker  of  sealed  instrument 
may  be  shown  by  parol  to  be 
surety        ..... 

If  creditor  knew  of  suretyship 
when  he  did  the  act  complained 
of,  this  is  sufficient  to  secure 
surety  his  rights 

Surety  must  show  that  creditor 
knew  of  suretyship;  what  is 
sufficient  evidence  of  the  fact    . 

Property  pledged  by  one  for  the 
debt  of  another  occupies  posi- 
tion of  surety    .... 

Property  of  wife  pledged  "for  debt 
of  husband,  occupies  position  of 
surety 

When  retiring  member  of  firm 


14 


15 


16 


17 


18 


19 


20 


21 


22 


THE    CONTEACT. 


Section, 
becomes  surety  of  other  part- 
ners for  firm  debts    .        .        .23 

Vendor  of  land,  who  sells  it  sub- 
ject to  mortgage,  is  surety  for 
mortgage  debt  .        .        .24 

Joint  obligors  are  sureties  for 
each  other;  when  sole  maker  of 
note  or  bond  is  surety,  etc.        .    25 

Stockholders  of  a  corporation 
liable  for  its  debts  are  not  its 
sureties;  when  surety  becomes 
principal,  etc 26 

Surety  entitled  to  same  rights 
after  judgment  against  him  as 
before 27 

Surety  who  in  terms  binds  him- 
self as  principal,  not  entitled  to 
rights  of  surety         .        .        .28 


Section. 

Surety  estopped  to  deny  recitals 
of  his  obligation       .        .        29-30 

Surety  estopped  to  deny  recitals 
of  his  obligation;  reason  why; 
when  not  estopped  .        .    31 

"When  surety  not  estopped  by  reci- 
tals of  obligation  signed  by  him   32 

Cases  holding  guaranty  of  note 
negotiable         .        .        .        .33 

Cases  holding  that  guaranty  of 
debt  passes  to  assignee  of  debt    34 

Cases  holding  guaranty  of  note 
not  negotiable   .        .        .        .35 

Ca^es  holding  guaranty  of  bond 
not  negotiable ;  when  guaranty 
on  back  of  note  transfers  title 
to  note;  obligation  of  surety 
cannot  be  sold  alone         .        .    36 


§  1.      "What  is  a  surety  or  guarantor — Difference  between  them. — 

A  surety  or  guarantor,  is  one  who  becomes  responsible  for  the 
debt,  default  or  miscarriage  of  another  person.^  The  words 
surety  and  guarantor  are  often  used  indiscriminately  as  synony- 
mous terms;  but  while  a  surety  and  a  guarantor  have  this  in  com- 
mon, that  they  are  both  bound  for  another  person,  yet  there  are 
points  of  difference  between  them  which  should  be  carefully 
noted.  A  surety  is  usually  bound  with  his  principal  by  the  same 
instrument,  executed  at  the  same  time  and  on  the  same  consider- 
ation, lie  is  an  original  promisor  and  debtor  from  the  begin- 
ning, and  is  held  ordinarily  to  know  every  default  of  his  principal. 
Usually  he  will  not  be  protected,  either  by  the  mere  indulgence 
of  the  creditor  to  the  principal,  or  by  want  of  notice  of  the  default 
of  the  principal,  no  matter  how  much  he  may  be  injured  thereby. 
On  the  other  hand,  the  contract  of  the  guarantor  is  his  own  sepa- 
rate undertaking,  in  which  the  principal  does  not  join.  It  is 
usually  entered  into  before  or  after  that  of  the  principal,  and  is 
often  founded  on  a  separate  consideration  from  that  supporting 
the  contract  of  the  principal.     The  original  contract  of  thejjrin- 


^In  Jones  V.  Whitehead,  4  Ga. 
397,  Lumpkin  J.  said:  "Suretyship 
has  been  defined  to  be  a  lame  substi- 
tute for  a  thorough  knowledge  of  hu- 


man nature."  For  a  careful  and  ex- 
cellent statement  of  what  a  surety  is, 
see  Smith  v.  Shelden,  35  Mich.  42,  per 
Cooley,  C.  J. 


OEIGIX   AXD    REQUISITES.  3 

cipal  is  not  liis  contract,  and  he  is  not  bound  to  take  notice  of  its 
non-performance.  He  is  often  discharged  by  the  mere  indulgence 
of  the  creditor  to  the  principal,  and  is  usually  not  liable  unless 
notified  of  the  default  of  the  principal.^  "  The  rules  of  the  com- 
mon law  as  to  sureties  are  not  strictly  applied  to  guarantors,  but 
rather  the  rules  of  the  law  merchant,  and  the  true  distinction 
seems  to  be  this:  That  a  surety  is  in  the  first  instance  answer- 
able for  the  debt  for  which  he  makes  himself  responsible,  and  his 
contracts  are  often  specialties,  while  a  guarantor  is  only  liable 
when  default  is  made  by  the  party  whose  undertaking  is  guarantied, 
and  his  agreement  is  one  of  simple  contract."  ^  The  principal 
and  surety  being  directly  and  equally  bound,  maybe  sued  jointly 
in  the  same  suit,  while  the  guarantor  being  bound  by  a  separate 
contract  and  only  collaterally  liable,  cannot  usually  be  joined  in 
the  same  suit  with  the  principal.^ 

§  2.  Origin  and  requisites  of  the  contract. — The  party  to  whom 
the  surety  or  guarantor  becomes  bound  is  called  the  creditor  or 
obligee.  The  party  for  whom  he  becomes  bound  is  called  the 
principal  or  principal  debtor.  The  surety  or  guarantor  becomes 
such  by  means  of  contract.  Some  of  the  earliest  contracts  men- 
tioned in  history  were  those  of  suretyship,  and  the  origin  of  the 
contract  is  shrouded  in  the  mists  of  antiquity.  Some  at  least  of 
the  incidents  of  suretyship  were  well  understood  in  the  remotest 
times.  In  the  Bible  it  is  written,  "  He  that  is  surety  for  a 
stranger  shall  smart  for  it,  and  he  that  hateth  suretyship  is  sure."  * 
To  constitute  the  contract  of  suretyship  or  guaranty,  the  same 
things  are  necessary  as  to  constitute  any  other  contract,  viz. : 
That  the  parties  be  competent  to  contract;  that  they  actually  do 
contract,  and  that  the  contract  if  not  under  seal  be  supported  by 

^McMillan  r.  Bull's  Head  Bank,  32  in  that  respect  from  the  contract  of  a 
Ind.  11;  Reigart  r.  White,  52  Pa.  St.  surety  which  is  direct;  and  in  general 
438;  Gaff  r.  Sims,  45  Ind.  262;  the  guarantor  contracts  to  pay  if  by 
Kramph's  Ex  x.  r.  Hatz's  Exrs.,  52  the  use  of  due  diligence  the  debt  can- 
Pa.  St.  525  ;  Allen  r.  Hubert,  49  not  be  made  out  of  the  principal  debtor. 
Pa.  St.  259;  Harris  r.  Newell,  42  Wis.  whUe  the  surety  undertakes  directly 
687.  for  the  pajnnent,  and  so  is  responsible 

''Hubbard,  J.,  in  Curtis  r.  Dennis,  at  once  if  the  principal  debtor  makes 

7  Metcalf  510;    in  Kearnes  v.  Mont-  default." 

gomery,  4  West  Ta.  29,  Alaxwell,  J.,  ^  Read  r.  Cutts,  7  Greenleaf,  186. 

said:     "  The  contract  of  a  guarantor  *  Proverbs  xi,  15. 
is  collateral  and  secondaiy.     It  differs 


^  THE   CONTRACT. 

a  suflBcient  consideration.     Any  one  competent  to  contract  gen- 
erally may  enter  into  the  contract  of  suretyship  or  guaranty. 

S  3.  When  guaranty  by  infant,  railroad  company  and  bank 
valid,  and  by  city  void. — The  contract  of  suretyship  or  guaranty 
made  by  an  infant  is  not  void,  but  may  be  ratified  by  him  upon 
arrivino-  at  majority.  But  in  order  to  charge  one  who  was  an  in- 
fant when  he  made  such  a  contract,  it  is  necessary  to  show  that  sub- 
sequent to  the  time  he  became  of  age  he  had  full  knowledge  that 
he  was  not  bound,  and  afterwards  distinctly  ratified  the  contract.^ 
Where,  under  the  laws  of  Iowa,  a  railroad  company  had  power 
to  issue  its  own  bonds  to  pay  for  the  construction  of  its  road,  it 
was  held  it  might  guaranty  the  bonds  of  cities  and  counties 
which  had  been  lawfully  issued  and  were  the  means  of  accom- 
plishing the  same  end.^  A  bank  may  guaranty  the  payment  of 
bonds  pledged  by  its  debtor  to  a  third  person  as  collateral  secu- 
rity for  money  with  which  the  debtor  pays  the  bank,  even  though 
the  bonds  have  never  been  assigned  to  the  bank.^  In  the  last 
two  cases  the  guarantor  accomplished  a  legitimate  object  by 
means  of  its  guaranty  and  did  not  assume  any  more  onerous 
oblio-ation  than  if  it  had  issued  its  own  bonds  in  the  one  case  or 
guarantied  bonds  assigned  to  it  in  the  other.  But  where  the 
municipal  government  of  ISTew  Orleans  guarantied  certain  notes 
of  a  corporation  whose  purpose  it  was  to  open  up  navigation 
through  a  portion  of  the  city,  it  was  held  the  guaranty  was  void, 
because  the  city  had  no  authority  to  make  it,  although  the  city 
might  lawfully  have  opened  up  the  navigation.  The  court 
said:  "It  can  hardly  be  maintained  as  a  legal  proposition  that 
for  every  act  for  which  an  agent  may  expend  money  for  his  princi- 
pal he  can  bind  his  principal  in  a  contract  of  suretyship.  * 
The  open  and  direct  appropriation  and  expenditure  of  money  by 
officers  of  a  municipal  corporation  has  nothing  in  it  in  common 
with  the  contingent  and  long  enduring  contract  of  suretyship."  * 

'  Owen    V.    Long,    112  Mass.   403;  possession  of   the  guarantor,  and  it 

Hinely  v.  Margaritz,   3  Pa.  St.  428;  transferred  them  for  value.    Held,  it 

Fetrow  v.  Wiseman,  40  Ind.  148.  was  estopped  to  deny  its  liability  upon 

^  Railroad  Company  v.  Howard,  7  the  guaranty  of  the  coupons. 

Wallace,  392.     In  Amot  v.  Erie  R.  R.  ^  Talraan  v.  Rochester  City  Bank, 

Co.,  5  Hun,  608,  one  railroad  company  18  Barbour,  123. 

guarantied    the  interest  coupons   on  *  Louisiana  State  Bank  v.  Orleans 

certain  bonds  of  another  railroad  com-  Navigation  Company,  3  La.  An.  294, 

pany.  The  bonds  afterwards  came  into  per  Eustis,  C.  J, 


MAKKIED    WOMAN,  5 

§  4:.  When  married  woman  may  become  surety  by  virtue  of 
statute. — When  statute  says  party  shall  not  be  received  as  surety, 
he  is  nevertheless  bound  if  he  is  received  as  such. — A  married 
woman  cannot,  unless  enabled  bj  statute,  become  surety  for  her 
husband  or  a  stranger.^  She  cannot  bind  herself  nor  her  separate 
property  either  at  law  or  in  equity  by  such  a  contract.  The  con- 
tract is  absolutely  void  at  law,  and  equity  will  not  charge  her 
separate  estate  where  she  has  received  no  benefit.^  In  many 
States,  by  statute,  a  married  woman  may  hold,  manage  and  con- 
tract with  reference  to  her  separate  property  the  same  as  if  she 
was  unmarried.  She  cannot,  however,  by  virtue  of  such  a  statute 
become  a  surety.  The  intention  was,  by  such  statutes,  to  remove 
her  disabilities  for  her  interest,  and  not  to  enable  her  to  contract 
onerous  obligations  from  which  she  derived  no  benefit.^  But 
where  a  statute  provided  that  a  married  woman  might  contract 
the  same  as  a  feme  sole,  it  was  held  that  she  might  lawfully 
mortgage  her  homestead  for  an  existing  debt  of  her  son.*  So 
where  a  statute  provided  that  the  "  contract  of  any  married  woman 
made  for  any  lawful  purpose  *  (should)  be  valid  and  binding 
and  ■^"  (might)  be  enforced  in  the  same  manner  as  if  she  were 
sole,"  it  was  held  that  a  married  woman  might  become  a  surety, 
the  contract  of  suretyship  being  a  lawful  contract,  and  in  that 
case,  for  a  lawful  purpose.^  A  statute  providing  that  attorneys 
shall  not  be  received  as  bail,  in  a  criminal  case,  is  constitutional,® 

'  Firemen's  Ins.  Co.  v.  Cross,  4  Rob-  In  De  Vries  v.  Conklin,  22  Mich.  255, 

inson  (La.)  508;  Gosman  f.  Cruger,  7  the  court  in  speaking  of  the  married 

Hun,  60.  woman's  statute  said:    "  The  disabili- 

"^  Yale  V.  Dederer,    18    "New  York,  ties  are  removed  only  so  far  as  they 

265;  Perkins  v.  Elliott,  8  C.  E.  Green  operated    unjustly  and    oppressively; 

(N.  J.)  526.  beyond  that  they  are  suflfered  to  re- 

2  Athol  Machine  Co.  v.  Fuller,  107  main.     Having    been    removed  with 

Mass.  437;   in  West  v.   Laraway,  28  the  beneficent  design  to  protect  the 

Mich.  464,  where  a  married   woman  wife  in  the  enjoyment  and  disposal  of 

had  signed  a  note  with  her  husband  her  property  for  the  benefit  of  herself 

as  his  surety,  it  was  contended  that  and  her  family,  the  statute  cannot  be 

although  she  was  not  personally  bound,  extended  by  construction  to  cases  not 

the  note  operated  as  a  charge  on  her  embraced  by  its  language  nor  within 

separate  estate.     But  the  court  held  its  design." 

otherwise,  and  said  that  if  such  were  *  Low  v.  Anderson,  41  Iowa  476. 

the  case   she  would   be   in   a   worse  ^  Mayo  v.    Hutchinson,    57  Maine, 

position  than  a  man  or  a  feme  sole,  546. 

because    a   note    by  either  of  them  ^Johnson  v.  Commonwealth,  2  Du- 

would  not  be  a  lien  on  their  property.  vail  (Ky.)  410. 


6  TUE   CONTRACT. 

but  such  a  statute  is  only  directory,  and  if  an  attorney  signs  a 
bail  bond  and  is  received  as  bail  he  is  bound  notwithstanding 
the  jDrohibition  of  the  statute.^  Where  a  statute  provided  that 
bail  should  be  a  resident  of  the  State,  a  non-resident  who  was 
accepted  as  bail  was  held  bound.^  A  statute  provided  that  ad- 
ministrators should  take  notes  with  two  sureties  for  certain  debts 
due  estates.  A  note  in  such  case  was  taken  with  only  one  surety, 
and  he  was  held  liable,  it  not  aj^pearing  that  any  fraud  or  impo- 
sition had  been  practiced  uj^on  him.^ 

§  5.  ■When  duress  a  defense  to  surety  or  guarantor. — If  the 
surety  or  guarantor  acts  under  duress  in  entering  into  the  con- 
tract, he  will  not  be  bound.*  And  this  for  the  same  reason  that 
a  person  sought  to  be  charged  on  a  contract  of  any  other  kind 
would  not  be  bound,  viz.,  because  he  never  consented  to  it. 
But  when  the  duress  is  exercised  on  the  principal  alone,  a  differ- 
ent question  arises.  It  has  been  held  that  the  duress  of  the 
principal,  who  is  a  stranger  to  the  surety,  will  be  no  defense  to 
the  surety.'  It  has  also  been  held,  and  it  seems  with  the  better 
reason,  that  the  duress  of  the  principal  alone  is  a  complete 
defense  to  the  surety."  "Where  a  statutory. bond  for  the  liberties 
of  a  prison  was  executed  by  the  principal  under  duress,  if  the 
principal  with  the  knowledge  and  consent  of  the  surety  claims 
and  exercises  the  right  of  being  on  the  liberties  by  virtue  of 
such  bond,  they  are  both  estopped  to  allege  its  invalidity.^ 
Where  a  creditor  caused  the  arrest  of  a  debtor  and  under  a  threat 
of  sending  him  to  state's  prison  forced  him  to  sign  a  note,  and  his 
wife,  who  was  then  in  a  delicate  condition,  was  induced  by  the  same 

^  Sherman  v.  The  State,  4  Kansas,  *  Small  v.  CuiTie,  2  Drewry,  102. 
570;  Jack  V.  The  People,  19  111.57;  ^  Wayne  v.  Sands,  Freeman,  351; 
Holandsworth  v.  Commonwealth,  11  Simmons  v.  Barefoots'  Exrs.  2  Hay- 
Bush,  617.  In  the  case  last  cited  the  wood,  (Nor.  Car.)  606;  Thompson  v. 
court  said:  "  If  those  of  the  exempted  Buckhannon,  2  J.  J.  Marsh.  416. 
or  priviliged  classes  persist  in  tendering  « Hawes  i;.  Marchant,  1  Curtis,  136; 
themselves  as  bail,  and  by  becoming  Owens  v.  Mynatt,  1  Heiskeli  (Tenn.) 
Buch  procure  the  discharge  of  persons  675.  The  reason  given  in  the  last  case 
accused  of  crime,  they  will  not  be  heard  is  that  if  it  were  otherwise,  the  surety 
to  say  that  they  are  not  bound  because  being  compelled  to  pay,  could  recover 
they  violated  the  law."  from  his  principal  and  thus  the  princi- 

*  Commonwealth  r.  Ramsay,  2  Du-  pal  be  deprived  of  his  defense.     See, 

vail  (Ky.)  386.  also,  Putnam  v.  Schuyler,  4  Hun,  166. 

'  Reynolds  v.  Dechaums,  24  Texas,  ^  Hawes  v.  Marchant,  1  Curtis,  136 
174. 


CONSIDEEATION   NECESSAKT.  7 

threats  to  indorse  the  note,  it  was  hekl  she  miglit  avail  herself  of 
the  duress.^  A  State  treasurer  gave  bond  with  sureties  as  re- 
quired by  law,  and  afterwards  held  over  under  a  constitutional 
provision,  no  successor  being  appointed.  "While  holding  over,  he 
was  "  required  and  demanded  "  by  the  legislature  to  give  a  new 
bond  in  a  much  larger  amount  and  gave  such  bond  with  sure- 
ties. The  sureties  on  the  last  bond  claimed  to  be  dischar2:ed  on 
account  of  duress  of  their  principal,  but  it  was  held  there  was 
no  duress  and  that  they  were  bound.^ 

§  6.  There  must  be  a  consideration  to  support  the  contract — 
Instances. — As  already  stated,  the  contract  of  suretyshij)  or 
guaranty  when  not  under  seal,  must,  in  order  to  render  it  valid, 
be  supported  by  a  sufficient  consideration.^  A  consideration  of 
one  dollar  is  sufficient  to  support  a  contract  of  suretyship  or 
guaranty  for  any  amount,  for  the  law  cannot  take  account  of 
the  prudence  or  imprudence  of  the  bargain  the  surety  or  guar- 
antor has  made*  But  there  must  be  some  consideration,  usually 
either  of  benefit  to  the  principal  or  surety,  or  detriment  to  the 
creditor,  to  support  the  contract.  Leaving  a  claim  in  the  hands 
of  an  attorney  to  control  and  collect,  is  a  sufficient  consideration 
for  a  contemporaneous  guaranty  of  the  claim  by  him.^  The 
liability  of  a  surety  on  a  note  is  a  sufficient  consideration  for  his 
subsequent  written  guaranty  of  its  payment,  whether  at  the  date 
of  the  guaranty  the  right  of  action  on  the  note  is  or  is  not 
barred  by  the  statute  of  limitations.''  A  married  woman  without 
consideration  became  surety  on  the  note  of  her  husband.  After 
the    death    of    the    husband    she    gave   a    new    note    for    the 

^  IngersoU  v.  Roe,  65  Barb.  (N.  Y.)  280;  Leonard  v.  Yreclenburgli,  8  Johns 

346.    InThompsonr.  Buckhannon.  2J.  29;  Cobb  r.   Page,    17  Pa.   St.   469 

J.  Marsh.  416,  Robertson  J.  said:  *'If  French  v.  French,  2  Man.  &  Gr.  644 

an  officer  colore  officii  exacts  a  bond  Aldridge    v.  Turner,  1  Gill  &  Johns 

to  himself  which  he  has  no  authority  (Md.)  427;  Tenney  r.  Prince,  4  Pick 

to  require,  the  security  may  avoid  it  as  385;  Clark  v.  Small,  6  Yerg.  (Tenn.) 

well  as  the  principal,  because  being  418. 

not  only  unauthorized  but  positively  *  Lawrence  v.  McCalmont,  2  Howard 

prohibited,  it  is  totally  void."  (U.  S.)  426;  Jackson's  Adm'r.  v.  Jack- 

2  Sooy  ads.  State,  38  New  Jer.  Law  son,  7  Ala.  791. 

324.  ^  Gregoi-y  v.  Gleed,  33  Vermont,  405. 

^Pfeiffer  v.  Kingsland,  25  Mo.  66;  « Miles  «.  Linnell,   97  Mass.  298;  see 

BarreU  v.  Trussell,  4  Taunt.  117-20;  on  same  subject,  Buckner  v.  Clark's 

Saunders  v.  Wakefield,    4    Barn.    &  Exr.,  6  Bush,  168. 
Aid.  595;  Bailey  v.  Freeman,  4  Johns. 


8  TUE   CONTEACT, 

amount  of  tLe  former  note  and  another  note  signed  by  lier  hus- 
band alone.  Afterwards  she  gave  another  note  and  a  mortgage 
to  secure  it,  the  only  consideration  for  the  last  note  being  the 
note  signed  by  her  after  her  husband's  death.  It  was  held  that 
all  the  papers  executed  by  her  were  void  for  want  of  consid- 
eration.' One  B,  the  assignee  of  a  lease,  assigned  the  lease  to 
"\V,  taking  from  W  and  from  R,  his  surety,  an  agreement  to  pay 
the  rent.  Held,  this  agreement  was  void  for  want  of  consideration. 
B  was  liable  for  rent  only  so  long  as  he  held  as  assignee  of  the 
lease,  and  W  by  accepting  the  assignment  of  the  lease  became 
liable  for  rent  to  the  owner  of  the  premises  and  not  to  B.' 

§  7.  Executory  consideration  to  principal  alone  sufficient. — 
It  is  not  necessary  to  the  validity  of  the  consideration  that  any 
portion  of  it  should  move  from  the  creditor  to  the  surety  or  guar- 
antor, provided  the  circumstances  are  such  that  a  previous  re- 
quest on  the  j^art  of  the  surety  or  guarantor  is  held  to  exist.  A 
consideration  moving  to  the  principal  alone  contemporaneous 
with  or  subsequent  to  the  promise  of  the  surety  or  guarantor  is 
sufficient.^  If  after  the  original  consideration  has  moved  be- 
tween the  creditor  and  principal,  the  surety  or  guarantor  signs 
upon  a  new  consideration,  moving  from  the  creditor  to  the  princi- 
pal, this  is  sufficient.^  When  a  guaranty  on  a  note  is  without 
date,  a  jury  may  infer  without  further  p>roof  that  it  was  made  at 
the  same  time  and  on  the  same  consideration  as  the  note.^  Where 
a  promise  that  a  surety  or  guarantor  will  become  liable  is  part  of 
the  inducement  on  which  the  creditor  acts  in  creatini?  the  oriori- 
nal  debt,  this  is  a  sufficient  consideration  to  support  the  contract 
of  the  surety  or  guarantor  who  subsequently  signs.  A  told  B 
that  if  C  would  lend  B  money,  he,  A,  would  be  surety  for  it.  B 
communicated  this  to  C,  and  on  the  strength  of  it  0  loaned  B 
money  and  took  his  note  for  it,  due  in  one  year.     Three  days 

^  Hetherington   v.  Hixon  46   Ala.,  29;  Morley  v.  Boothly,  10  Moore,  395; 

297.  Bicksford  v.  Gibbs,  8  Cush.  154;  Mc- 

"Stoppani  v.  Richard,  1  Hilton  (N.  Naught  v.  McClaughry,  42  New  York, 

Y.)  509.  22. 

"  Wren  v.  Pearce,  4  Smedes  &  Marsh.  *  Gay  v.  Mott,  4.3  Ga.  252. 

(Miss.)  91;  Freeman  v.   Freeman,   2  ^Bickford  v.  Gibbs,   8  Cush.    154; 

Bulst.   269;  Bailey  v.  Croft,  4  Taunt.  Underwood  v.   Hossack,  38  111.   208. 

611 ;  Henderson  t'.  Rice,  1  Cold.  (Tenn.)  On  the  same  subject,  see  Snevily  v. 

223;    Robertson  v.  Findley,   31   Mo.  Johnston,  1  Watts  &  Serg.  307. 
384;  Leonard  v.  Vredenburgh,  8  Johns. 


SUFFICIENCY    OF    CONSIDEKATION.  9 

after  tlie  note  became  due  A  signed  it,  and  he  was  held  bonnd.^ 
A  principal  executed  and  delivered  a  note  to  a  creditor  which 
specified  no  time  of  payment,  and  at  the  same  time  agreed  that 
he  would  procure  B  to  sign  as  surety  if  at  any  time  the  creditor 
should  deem  himself  insecure.  Afterwards  the  creditor  returned 
the  note  to  the  principal,  with  the  request  that  he  should  get 
B  to  sign,  which  he  did,  and  E  was  held  liable.''  The  same 
principle  was  applied  in  a  case  where  A  sold  B  goods  on  the 
promise  by  B  that  C  would  guaranty  the  payment,  and  C  guar- 
antied the  payment  of  the  note  given  by  B  for  the  price  of  the 
goods  about  three  hours  after  the  note  was  given.^  So  a  guaranty 
is  binding  when  goods  are  contracted  for  one  day  by  the  principal, 
and  the  guaranty  is  executed  the  next  day  and  delivered  to  the 
seller  before  the  goods  are  delivered  by  him,  because  the  sale  was 
not  complete  till  the  goods  were  delivered.'*  A  principal  signed 
an  undertaking,  and  at  that  time  it  was  agreed  between  the  princi- 
pal and  creditor  that  certain  other  parties  should  sign  it  as  sure- 
ties. The  writing  was  delivered  by  the  principal  to  the  creditor 
when  it  was  signed,  and  the  creditor  afterwards  and  at  another 
time  presented  it  to  the  sureties,  who  signed  it,  and  it  was  held 
they  were  bound.^ 

§  8.      Agreement  by  creditor  to  forbear  towards  principal  sufB- 
cient. — An  agreement  on  the  part  of  the  creditor  to  extend  the 

'  Paul  V.  Stackhouse,  38  Pa.  St.  302,  sustain    the   promise  of  the    surety. 

The  same  principle  was  held  in  the  But  if  the  obligation  of  the  principal 

case  of  a  sale  of  goods  by  C  to  B  un-  debtor  be  founded  upon  a  good  con- 

der  similar    circumstances,    Standley  sideration,  and  at  the  time  it  is  incurred 

V.  Miles,  36  Miss.  434.  or  before  that  time  the  promise  of  the 

^  McN aught  V.  McClaughry,  42  New  surety  is  made  and  enters  into  the 

York,  22.  inducement  for  giving  the  credit,  then 

^  Wheelwright  v.  Moore,  2  Hall  (N.  the  consideration  for  which  the  princi- 
Y.)  162.  With  reference  to  what  is  pal  debt  is  created  is  considered  as  a 
sufficient  consideration  for  guaranty  of  vahd  consideration  also  for  the  under- 
promissory  note  by  payee,  who  also  in-  taking  of  the  surety.  *  Although 
dorses  it,  see  Gillighan  v.  Boardman,  the  signatures  of  the  principal  obligors 
29  Me.  79.  were  procured  at  one  time  and  those 

*  Simmons  v.  Keating,  2  Starkie,  375.  of  the  sureties  afterwards,  nevertheless 

^Williams  t'.  Perkins,  21   Ark.  18.  in  contemplation  of  law  their  promises 

Compton,  J.   said:     "If  the  debt  or  were  contemporaneous,  and  formed  a 

obligation  of  the  principal  Tlebtor  is  part  of  one  and  the  same  general  tran- 

already  incurred  previous  to  the  under-  saction,  and  the    same  consideration 

taking  of  the  surety,  then  there  must  which  supports  the  promise  of  the  one 

be  a  new  and  distinct  consideration  to  also  supports  that  of  the  other." 


2Q  THE   CONTKACT. 

time  of  payment  to  the  principal  for  a  definite  time,  is  a  sufficient 
consideration  for  the  contract  of  suretyship  or  guaranty,  the  one 
ac'reemcnt  being  a  consideration  for  the  other,  and  the  delay 
usually  operating  both  as  a  benefit  to  the  principal  and  a  detriment 
to  the  creditor.^  An  agreement  for  forbearance  for  one  year ,2  for  a 
convenient  time,' on  an  over-due  note,  for  four  years,*  for  a  consid- 
erable time,'*  or  for  a  reasonable  time,'  are  any  of  them  a  sufficient 
consideration.  An  agreement  on  the  part  of  the  creditor  for  gen- 
eral indulgence  toward  the  principal,  without  any  definite  time 
being  specified,  with  proof  of  actual  forbearance  for  a  reasonable 
time^is  sufficient.''  An  agreement  for  delay  in  consideration  of 
further  forbearance,  means  forbearance  for  a  convenient  or  reason- 
able time.^  But  in  order  that  forbearance  by  the  creditor  towards 
the  principal  may  be  a  sufficient  consideration,  there  must  be  an 
ao-reement  on  the  part  of  the  creditor  that  he  will  forbear.  Mere 
forbearance  or  omission  on  the  part  of  the  creditor  to  exercise  his 
len-al  right  without  any  agreement  to  that  eflect,  is  not  sufficient, 
because  he  may  at  any  moment,  and  at  his  own  pleasure,  pro- 
ceed. There  must  be  promise  for  promise.^  An  agreement  to 
withdraw,  and  the  withdrawal  of  a  suit  or  other  proceeding  against 
a  principal  is  also  a  sufficient  consideration.^" 

§  9.  Executed  consideration  to  principal  not  sufficient — Dam- 
age to  creditor  sufficient, — Where  the  consideration  between  the 
principal  and  creditor  has  passed  and  become  executed  before  the 

1  Fuller  V.  Scott,  8  Kansas,  25;    Un-  ^  Sliupe  v.  Galbraitli,  32  Pa.  St.  10; 

derwood  v.  Hossack,  38  111.  208;  Pul-  Walker  v.  Sherman,  11    Met.  (Mass.) 

liam  ».  Withers,  8  Dana  (Ky.),  98.  170;     Mecorney  v.   Stanley,   8  Cush. 

«  Sage  V.  Wilcox,  6  Conn.  81.  (Mass.)  85;  Breed  v.  Hillhouse,  7  Conn. 

» Sadler  v.  Hawkes,  1  RoU.  Abr.,  27,  623;  Crofts  v.  Beale,  11  Com.  B.  172; 

pi.  49;  Trickct  v.  Mandlee,  Sid.  45.  Sage  v.  Wilcox,  6  Conn.  81.    It  was 

*  Breed  v-   Hillhouse,  7  Conn.  523.  held  in  some  old  cases  which  have  not 

5  Mapes  V.  Sidney,  Cro.  Jac.  683.  been  generally  followed  in  later  times, 

6  Johnson  v.  Whitchcott,  1  E^oll.  that  an  agreement  to  forbear  for  an 
Abr.,  24  pi.,  33;  Lonsdale  v.  Brown,  4  indefinite  period,  Phillips  v.  Shack- 
Wash    148.  f*^^'^'  ^^'^-  •^^'^-  '^■^'^'  °^"  ^^"^  ^  short, 

''Thomas  17.  Croft,  2  Richardson  Law  ToUmrst  v.  Brickinden,  Cro.  Jac.  250, 

(So.  Car.)  113;    Elting  v.  Vanderlyn,  or  some,  Tricket  v.  Mandlee,  Sid.  45, 

4  Johns.  237;    Oldershaw  v.  King,   2  or  a  little  time,  1  Roll.  Abr.  23,  would 

Ilnrl.  &  Nor.  520;  Rowlett  v.  Ewbank,  not  be  a  sufficient  consideration. 

1  Bush  (Ky.)  477.  ^o  Worcester   Savings  Bank  v.  Hill, 

*  Caldwell  v.  Heit«hur,  9  Watts  &  113  Mass.  25;  Harris  ??.  Venables,  Law 

•   Serg.  51;  Oldershaw  v.  King,  2  Hurl.  Rep.  7  Exch.  235. 
&  Nor.  520. 


SUFFICIENCY   OF    CONSIDEKATION.  11 

contract  of  the  surety  or  guarantor  is  made,  and  sucli  contract 
was  no  part  of  the  inducement  to  tlie  creation  of  the  original 
debt,  such  consideration  is  not  sufficient  to  sustain  such  contract.^ 
One  person  entered  into  a  contract  with  another  by  which  he 
was  to  receive  such  other's  promissory  note  without  surety  and 
the  note  was  made  and  received.  Afterwards  the  payee  requested 
the  maker  to  get  a  surety,  and  the  maker  took  the  note  and  had 
it  subscribed  by  a  third  person,  and  returned  it  to  the  payee. 
There  was  no  new  consideration,  and  it  was  held  the  surety  was 
not  bound."  But  where  a  bond  was  executed  by  the  obligors 
and  the  obligee  refused  to  receive  it  unless  it  was  guarantied,  and 
A  thereupon  guarantied  it  without  any  request  from  the  obligors, 
and  the  obligee  thereupon  accepted  the  bond,  it  was  held  that 
the  acceptance  of  the  bond  was  a  sufficient  consideration  for 
the  guaranty.^  A  party  sold  a  horse  to  another,  being  misled 
by  ftilse  statements  and  representations  of  the  purchaser,  and  took 
a  note  for  the  price.  Discovering  the  fraud,  the  seller  was  about 
•  to  rescind  the  contract  and  reclaim  the  horse.  Upon  being  in- 
formed of  these  facts  two  days  after  the  note  was  made,  a  surety 
put  his  name  to  the  note  and  in  consequence  the  property  was 
nt3t  reclaimed.  It  was  held  that  not  reclaiming  the  horse  was  a 
good  consideration  for  the  agreement  of  the  surety.'*     A  guaranty 

iTomUnson  v.  GeU,  6  Ad.  &  Ell.  564;      64  Pa.  St.  406;  Davis  v.  Banks,  45  Ga. 
Yale  V.  Edgerton,  14  Minn.  194;  Wil-      138;    Badger  v.  Barnabee,   17    New 


Hams  V.  Marshall,  42  Bab.  524 
Thomas  v.  Williams,  10  Barn.  &  Cres 
664;  Pratt  v.  Hedden,  121  Mass.  116 
Famsworth  v.  Clark,  44  Barb.  601 
Eastwood  V.  Kenyon,  11  Ad.  &  EU 
438;  Ludwick  v.  Watson,  3  Oreg.  256 


Hamp.  120;  Brown  v.  Brown,  47  Mo. 
130;  Ware  v.  Adams,  24  Me.  177; 
Clompton's  Exi-s.  r.  Hall,  51  M:ss.  482. 
''Jackson  t\  Jackson,  7  Ala.  791. 
The  court,  Collier,  C.  J.,  among  other 
things,  said:     "  Any  act  in  the  nature 


Parker  ti.  Bradley,  2  Hill,  584;  Hunt  of  a  benefit  to  the  person  who  promises, 

V.  Bate,  Dyer  272  (a);  Stewart  t'.Hinkle,  or  to  any  other  person  upon  his  re- 

]  Bond,  506;  Leonard  v.  Vredenburgh,  quest,  or  any  act  which  is  a  trouble  or 

8  Johns.  29;  French  v.  French,  2  Man.  detriment  to  him  to  whom  the  promise 

&  Gr.   644;  McCreary  v.  VanHook,  35  is  made,  is  sufficient,  and  the  amount  of 

Tex.  631 ;  Wood  v.  Benson,  2  Cr.  &  benefit  or  of  trouble  or  detriment  or 

Jer.  94;  1  Roll.  Abr.  27  pi.  49;  Ashton  its  comparative  value  in  relation  to 

V.  Bayard,  71  Pa.  St.   139;  Payne  v.  the  promise  is  indifferent. "    See,  also, 

Wilson,  7  Barn.  &  Cres.  423;  Ellen-  Thomer  t-.  Field,  1  Bulstr.  120;  Hunt 

wood  V.  Fults,  63  Barb.  321;  Besshears  v.  Bate,  3  Dyer,  272  (a), 

r.  Eowe,  46  Mo.  501;  Lossee  w.  Wil-  ^Gardner   v.  King,    2    Ired.    Law 

Hams,  6  Lans.  228;  Harris  v.  Young,  (Nor.  Car.)  297. 

40  Ga.  65;  Sawyer  v.  Fernald,  59  Me.  ^Harwood  v.  Kiersted,  20  111.  367. 
50D;  Uhler  r.Fanners'  National  Bank, 


J  2  THE    CONTKACT. 

of  past  and  future  advances  made  and  to  be  made  to  a  third  per- 
son is  o-ood  for  the  whole  and  the  consideration  sufficient.^  But 
there  nuist  be  an  agreement  on  the  part  of  tlie  creditor  to  make 
the  future  advances,  or  he  must  actually  make  them,  or  there  will 
be  no  consideration  for  the  agreement  to  pay  for  the  past  ad- 
vances and  it  will  be  void.^  It  is  not  necessary  that  the  consid- 
eration should  consist  of  a  benefit  to  the  principal  or  surety. 
Any  trouble,  detriment  or  inconvenience  to  the  creditor  is  suf- 
ficient.^ When  the  consideration  moves  directly  between  the 
surety  or  guarantor  and  the  creditor,  the  same  rules  apply  which 
prevail  with  reference  to  the  consideration  for  any  other  con- 
tract.* 

g  10.  How  far  partner  can  bind  firm  or  agent  can  bind  princi- 
pal, as  surety  or  guarantor. — One  partner  cannot  usually  bind  the 
firm  as  sureties  or  guarantors  for  another.^  The  reason  is,  that 
the  business  of  a  partnership  is  not  commonly  that  of  making 
contracts  as  sureties  or  guarantors;  and  the  partner  who  makes 
such  a  contract,  acts  outside  the  scope  of  his  implied  authority  as* 
agent  of  the  firm.  One  member  of  a  firm  of  attorneys  has  no 
right,  in  consideration  of  the  discharge  of  their  client  from  cus- 
tody, to  bind  the  firm  to  pay  the  debt  of  such  client,  and  the  costs 
of  suit.^     So  where  certain  partners  were  railroad  contractors,  and 


^Hargroves  v.  Cook,  15  Ga.  321 
White  V.  AVoodward,  5  Com.  B.  810 
Chapman  v.  Sutton,  2  Com.  B.   634 


^McQuewansv.  Hamlin,  35  Pa.  St. 
517;  Sutton  v.  Irwine,  12  Serg.  & 
Rawle,  13;  Rolston  v.  Chick,  1  Stew. 


RusseU  V.   Moseley,  3  Bro.  &  Bing.  (Ala.)  526;  Svveetsert\  French,  2  Cush. 

211.    To  the  same  effect  with  refer-  309;  Mayberry  v.  Baiuton,  2  Harring- 

ence  to  attorneys'  fees,  see  Roberts  v.  ton  (Del.)  24;  Duncan  v.  Lowndes,  3 

Griswold,  35  Vt.  496;  also  with  refer-  Camp.   478;    Crawford  v.   Stirling,  4 

ence  to  rent,  see  Vinal  v.  Richardson,  Esp.  207. 

13  Allen,  521.    To  same  effect  as  above,  *Hasleham  tJ.  Young,  5  Ad.  &  Ell. 

see  Boyd  v.  Moyle,  2  Man.  Gr.  &  S.  (N.  S.)  833;  Id.  Dav.  &  Mer.  700.    In 

644;    contra.    Wood    v.    Benson,     2  Mauldin  v.  Branch  Bank  at  Mobile,  2 

Cromp.  &  Jer.  94.  Ala.  502,  the  court  said,  if  an  unau- 

*Westhead  v.   Sproson,  6  Hurl.  &  thorized  indorsement  by  one  member 

Nor.   728;    Morrell    v.    Cowan,    Law  of  a  firm  was  on  commercial  paper,  an 

Rep.,  6  Eq.  Div.  166;  Boyd  v.  Moyle,  innocent     indorsee     might     recover 

2  Com.  B.  644.  against  the  firm.     In  Fuller  v.  Scott,  8 


'» Wells  V.  Mann,  45  New  York,  327 
Colgin  V.  Henley,  6  Leigh  (Va.)  85 
Morloy   v.    Boothly,    10  Moore,  395 


Kansas,  25,  when  it  was  proved  that  a 
firm  indorsed  a  note  in  blank  in  the 
firm  name,  the  court  said:  "  It  would 


•Pillans  V.  Van  Mierop,  3  Burr.  1663.  then  be  presumed  that  such  indorse- 

*  Leonard  v.  Vredenburgh,  8  Johns.      ment  was  made  in  the  firm  business." 
29;  Smith  v.  Fmch,  2  Scam.  (lU.)  321. 


GUARANTY    BY    PAETNEK.  13 

sub-let  a  portion  of  their  work  to  A,  and  it  was  necessary  for  A 
to  have  brick  to  carry  on  the  work,  and  he  could  not  get  them  with- 
out coal,  and  one  of  the  partners,  without  the  knowledge  of  the  oth- 
ers, gave  a  guaranty  in  the  firm  name  for  coal  bought  by  A  for  that 
purpose,  it  was  held  the  guaranty  did  not  bind  the  partnership,^ 
"Where,  however,  the  partner  who  attempts  to  bind  the  firm  has 
special  authority  for  that  purpose  from  the  other  members,  he 
may  bind  the  firm  the  same  as  any  other  agent  having  authority. 
So  where  the  making  of  such  a  contract  is  within  the  usual  scope 
of  the  business  of  the  firm,  it  may  be  bound  by  the  act  of  one 
partner  in  that  regard.  "When  the  contract  is  made  by  a  partner 
witliout  authority,  if  the  other  members  of  the  firm  afterwards 
adopt  it  and  act  on  it  the  firm  will  be  bound.^  A  firm  sold  a 
steamboat  to  A,  and  he  gave  a  note  for  the  purchase  money  to  B, 
who  was  a  creditor  of  the  firm,  in  payment  of  the  firm  debt,  and 
one  of  the  firm  signed  the  name  of  the  firm  to  the  note  as  sure- 
ties. It  was  held  that  the  firm  was  bound,  because  it  was  in  fact 
their  own  debt  and  not  the  debt  of  anotlier  that  the  note  paid, 
and  the  substance  and  not  the  form  of  the  transaction  should  bfe 
looked  to.'  One  firm  may  become  the  surety  of  another  firm,  the 
same  as  one  individual  may  become  the  surety  of  another.*  A 
party  authorized  to  sign  another's  name  as  surety,  must  pursue 
his  authority  strictly  in  order  to  bind  the  principal.  Thus  where 
a  party  was  authorized  to  sign  the  name  of  A  as  surety  to  a  note 
and  he  signed  the  name  of  A  to  the  note  as  a  j)rincipal,  it  was 
held  A  was  not  bouud.^  One  who  is  acting  as  agent  of  anothei-, 
and  as  such,  writing  letters  in  his  name,  collecting  money  and  giv- 
ing receipts  for  the  same  in  his  name,  indorsing  bank  checks, 
etc.,  has  no  power  without  special  authority  to  bind  his  principal 
by  the  guaranty  of  the  debt  of  a  third  person.®  So  an  agent 
having  a  general  power  of  attorney  to  transact  business  for  his 
principal  and  sign  his  name  to  bonds,  notes,  etc.,  in  connection 
with  the  business  of   the  principal,  cannot  by  virtue  of   such 

^Brettel  v.  Williams,  4  Wels.  Hurl.  ^Langan  v.  Hewett,    13  Smedes  &, 

&  G.  623.  Marsh.  122. 

2  Crawford  v.  Stirling,  4  Esp.  207;  *  Allen  t;.  Morgan,  5  Humph.  (Tenn.) 

jE^icpar^eGardom,  15  Vesey,  286.    See,  624. 

also,  on  same  subject,  Sandilands   v.  ^  Bryan  v.  Berry,  6  Cal.  394. 

Marsh,  2  Bam.  &  Aid.  673;  Hope  r.  egtevenson    v.    Hoy,    43     Pa.    St. 

Gust,  cited  in  Shirreff  v.  Wilks,  1  East,  191. 
53. 


IJ^^  THE    CONTRACT. 

authority  bind  his  principal  as  surety  on  a  sequestration  bond  in 
a  matter  not  connected  with  the  business  of  the  principal.^ 

§  11.  Where  act  of  principal  is  prohibited  by  law,  or  is  fraudu- 
lent, surety  not  bound. — AVhen  the  act  of  the  principal  for  which 
the  surety  undertakes  to  become  responsible  is  prohibited  by 
law,  the  surety  will  not  be  bound.  Thus  a  statute  provided 
that  express  companies  should  not  do  business  in  the  state  with- 
out recording  in  every  county  in  which  they  did  business  a  state- 
ment, showing  the  stockholders'  names,  residences,  etc.  An  ex- 
press company  witliout  complying  with  the  law,  appointed  an  agent 
who  gave  bond  witli  surety  for  the  faithful  performance  of  his 
duties.  The  agent  collected  money  for  packages  sent  and  failed 
to  pay  it  over,  and  it  was  held  the  surety  was  not  bound.  The 
bond  being  given  for  the  performance  of  an  illegal  act,  viz., 
sending  packages  by  express,  was  void.'^  The  same  thing  was 
held  in  a  case  where  a  statute  prescribed  the  terms  on  which  a 
foreign  insurance  company  could  do  business  in  a  State,  appoint 
agents.,  etc.  The  court  said:  "It  has  often  been  held  that  an 
action  founded  on  a  transaction  prohibited  by  statute  cannot  be 
maintained,  although  a  penalty  be  imposed  for  violating  the  law, 
and  it  be  not  expressly  declared  that  the  contract  be  void."'  So 
where  a  statute  prohibited  the  making  of  a  lease  to  a  slave,  the 
surety  on  a  lease  made  to  a  slave  was  held  not  bound.*  The  court 
said:  "  The  defense  set  up  that  the  contract  under  consideration  is 
null  and  void,  because  it  contravenes  public  policy,  is  not  a  per- 
sonal exception.  If  slaves  were  merely  incapacitated  from  making 
a  contract  of  lease,  the  case  might  be  diiferent,  but  there  is  no 
alBnity  between  a  prohibitory  law,  laying  do^vn  rules  of  public 
policy,  and  one  merely  incapacitating  a  party  for  his  own  protec- 
tion or  interest."  The  distinction  is  here  drawn  between  a  pro- 
hibition to  the  principal  on  the  grounds  of  public  policy,  and  a 
mere  personal  exemption  of  the  principal.  As  will  be  hereafter 
seen,  a  mere  personal  exemption  to  the  principal,  as  infanc}'-  or 
coverture,  will  furnish  no  defense  to  the  surety.  On  the  same 
principle  the  surety  on  a  note  may  show  as  a  defense  that  it  was 
given  by  the  principal  to  pay  a  gambling  debt.^     So  where  the 

^  Gates  V.  Bell,  3  La.  An.  62.  *  Levy  v.  Wise,  15  La.  An.  38. 

'Daniels  v.  Barney,  22  Ind.  207.  ^  Leckie  v.   Scott,  10  La.  (5  Curry) 

'Tliome  V.  Travellers  Ins.  Co.  80      412. 
Pa.  St.  15. 


VOLUNTAET    BOND.  15 

transaction  wliich  induces  the  giving  of  a  note  by  the  principal  is 
fraudulent,  the  surety  is  not  bound.  Thus,  A  being  a^trader  in 
embarrassed  circumstances,  was  indebted  to  B  for  money  lent  and 
goods,  and  B  promised  to  induce  A's  creditors  to  agree  to  a  com- 
position on  condition  that  A  would  give  him  a  note  for  the 
money  lent,  signed  by  A  and  a  surety;  and  it  was  agreed  between 
A  and  B  that  the  matter  should  be  ke^Dt  secret.  The  note  was 
given,  signed  by  a  surety  as  agreed;  B  endeavored  to  eifect  a 
composition  and  failed:  Held,  the  surety  was  not  liable.  The 
fraud  was  that  B,  by  undertaking  to  procure  the  composition, 
obtained  a  secret  preference,  and  the  note  being  void  in  its  crea- 
tion, could  not  be  rendered  valid  by  the  subsequent  fact  that  B 
failed  to  effect  a  composition.* 

§  12.  Voluntary  bond  not  required  by  law,  or  different  from 
bond  required,  valid. — The  general  rule  is  that  a  bond,  whether 
required  by  statute  or  not,  is  good  at  common  law  if  entered  into 
voluntarily,  for  a  valid  consideration,  and  if  it  is  not  repugnant 
to  the  letter  or  policy  of  the  law;  and  the  surety  on  such  bond 
is  bound  thereby.^  The  voluntary  bond  of  a  state  treas- 
urer which  is  not  demandable  by  law,^  of  a  county  treas- 
urer where  there  is  no  law  requiring  a  bond  to  be  given,* 
of  a  plaintiff  in  an  attachment  suit  when  no  bond  is  re- 
quired by  law,^  are  all  valid  and  bind  the  sureties  who  sign  them. 
But  where  a  district  judge  having  no  authority  to  do  so  requires 
a  father  or  natural  tutor  of  a  child  to  give  bond  for  the  faitliful 
performance  of  his  trust,  and  such  a  bond  is  given,  the  surety 
thereon  is  not  liable.  The  maxim  that,  as  a  man  consents  to 
bind  himself  so  shall  he  be  bound,  is  not  applicable  to  such  a 
case,  for  the  bond  is  not  purely  voluntary,  but  is  required  by 
the  judge  from  the  parties  as  the  condition  for  the  exer- 
cise of  a  function.^  "Wliere  a  bond  is  required  by  law  to  be 
given,  the  voluntary  bond  of  an  executor  or  administrator 
to  the  ordinarj^,  which  varies  from  the  form  prescribed  by 
the    statute,^    of    a    casliier   containing    nothing    contrary    to 

^  Wells  V.  Girling,  1  Brod.  &  Bing.  *  Supervisors  of  St.  Joseph  v.  Coffen- 

447;  Id.  4  Moore,  78.  bury,  1  Manning  (Mich.)  355. 

'^Thompson  v.  Buckhannon,  2  J.  J.  ^Lartigae  v.  Baldwin,  5  Martin,  0. 

Marsh.  (Ky.)416;  Hobokent?.  Harrison,  S.  (La.)  193. 

1  Vroom  (N.  J.)  73.  «Ancion  v.  Guillot,  10  La.  An.  124. 

^Sooy  «f?s.  The  State,  38  New  Jer.  ^Ordinary  v.   Cooley,  1  Vroom  (N. 

Law,  324.  J.)  179. 


16  THE    CONTRACT. 

law  Ijut  varying  from  the  statutory  form,^  of  a  plaintiff  in  re- 
plevin, in  which  the  condition  does  not  conform  to  the  stat- 
ute,^ are  all  valid  and  binding  on  the  sureties.  Where  a 
statute  provided  that  the  bond  of  a  prisoner  given  for  the 
liberty  of  the  jail  yard,  should  be  approved  by  two  justices  of 
the  peace,  and  a  bond  was  given  but  not  approved  by  the  jus- 
tices, the  sureties  were  held  liable.  The  statutory  requirement 
that  the  bond  should  be  approved  by  two  justices,  was  in- 
tended to  prevent  oppression  by  the  creditor  in  refusing  sufficient 
sureties,  and  the  creditor  having  accepted  the  bond,  the  intention 
of  the  statute  was  complied  with,^  A  statute  required  that  a 
bank  cashier  should  give  a  bond  conditioned  for  the  faithful  per- 
formance of  his  duties.  The  cashier  gave  a  bond  which  provided 
for  past  as  well  as  future  delinquencies:  Held,  the  bond  was  not 
void  because  it  contained  more  than  provided  by  statute.  Being 
a  voluntary  bond  and  for  a  lawful  purpose,  it  was  good  at  com- 
mon law.*  A  statute  provided  that  in  all  cases  where  an  exe- 
cution should  issue  illegally,  if  affidavit  of  the  fact  was  filed  and  a 
bond  given,  the  execution  should  be  suspended  until  the  matter 
was  determined,  but  the  statute  did  not  prescribe  what  the  condi- 
tion of  the  bond  should  be.  An  execution  was  issued  to  which 
no  seal  of  the  court  was  attached.  An  affidavit  of  its  illegality  was 
filed,  and  a  bond  given,  the  condition  of  which  was:  "Now  if  it 
shall  appear  that  the  said  writ  has  not  been  properly  issued  in 
this,  that  there  is  no  seal  to  said  writ,  then  the  above  obligation 
to  be  void."  The  sureties  were  not  liable  by  the  terms  of  the 
bond,  but  the  court  held  them  for  the  amount  of  the  execution 
suspended,  on  the  ground  that  as  the  statute  did  not  prescribe 
the  condition  of  the  bond,  its  condition  must  be  found  in  the  ob- 
ject of  the  statute;  that  it  was  undoubtedly  the  intention  of  the 
sureties  to  become  bound  according  to  the  liabilities  imposed  by 
the  statute;  and  that  as  the  object  intended  by  them  had  been 

'  Grocers' Bank  r.  Kingman,  16  Gray  court,  etc.,   and    should  satisfy  such 

4"3.  judgment  as  should  be  rendered  by 

^  Morse  v.  Hodson,  5  Mass.  314.  the    court.     The  last  provision  as  to 

'  Bartlett  v.  Willis,  3  Mass.  86.  the  payment  of  the  judgment,  was  not 

*  Franklin  Bank  v.  Cooper,  36  Me.  required  by  law,  but  was  inserted  by 

179.     In  Baker  v.  Morrison,  4  La.  An.  the  sheriff.     It  was  held  not  binding 

372,   a    sequestration  bond    provided  on  the  surety.     The  bond,  under  the 

that  the  defendant  should  not  send  the  circumstances,  could  not  be  said  to  be 

property  out  of  the  jurisdiction  of  the  a  voluntary  one. 


VOLUNTARY    BOND,  17 

accomplished,  they  were  liable.^  This  case  is  of  very  questiona- 
ble character,  running  counter,  as  it  does,  to  the  current  of  au- 
thority, which  is,  that  a  surety,  is  not  bound  beyond  the  strict 
terms  of  his  engagement.  If  it  can  be  sustained  at  all,  it  can 
only  be,  upon  its  own  peculiar  circumstances. 

§  13.  Voluntary  bond  binds  surety. — The  principle  that  the 
surety  in  a  voluntary  bond,  made  upon  good  consideration,  and 
which  does  not  contravene  the  policy  of  the  law  or  the  prohibi- 
tion of  a  statute,  is  liable  at  common  law  on  such  bond,  has  been 
applied  to  a  great  variety  of  circumstances.  Such  a  bond  is  valid, 
even  tliough  another  bond  be  required  by  statute.  Thus,  where 
a  statute  required  a  bank  cashier  to  give  a  bond  with  two  or  more 
sureties,  and  he  gave  a  bond  with  only  one  surety,  such  surety 
was  held  liable.  The  statute  did  not  say  no  other  bond  but  the 
one  required  should  be  taken,  and  was  only  directory.^  On  the 
same  principle  the  sureties  on  an  administrator's  bond,  entered 
into  before  a  probate  judge  de  facto  but  not  de  jure,  were  held 
liable.'  The  sureties  on  a  guardian's  bond  having  become  insol- 
vent, the  uncle  of  the  minors  demanded  of  the  guardian  that  he 
give  another  bond,  which  he  did,  with  a  new  surety,  ^o  new 
bond  was  required  by  the  court,  but  on  a  proper  showing,  one 
would  have  been  required:  Held,  the  surety  on  the  last  bond  was 
bound.*  So,  where  a  testator  by  will  directed  that  his  executor 
need  give  no  bond,  but  the  executor  falsely  represented  to  A  that 
the  court  required  a  surety  of  him,  and  thereby  induced  A  to  be- 
come surety  on  an  executor's  bond,  which  was  approved  by  the 
court,  A  was  held  liable.  The  fraud  which  the  executor  practiced 
on  A  would  not  avoid  the  bond  unless  the  obligee  participated  in 
it.^  A  statute  required  that  tobacco  inspectors  should  give  a 
bond  with  certain  conditions,  in  the  sum  of  $2,000,  and  such  a 
bond  was  given.  Two  days  before  the  giving  of  thS  bond,  an 
amendment  to  the  statute  had  been  passed,  requiring  a  bond  of 
$5,000,  and  changing  the  condition  somewhat.  The  bond  already 
given  was  held  to  bind  the  sureties  as  a  common  law  obligation.^ 
Where  a  statute  provided  that  injunction  bonds  should  be  given 

^  Mitchell  V.  Duncan,  7  Florida,  13.  *Elam  v.  Heirs  of  Barr,  14  La.  An. 

2  Bank  of  Brighton  v.  Smith,  5  Al-  682. 

len,  413.  ^  Sebastian    v.   Johnson,   2    D avail 

»Pritchett  V.  The  People,  1  Gilman  (Ky.)  101. 

(III.)  525.  6  Lane  v.  Kasey,    1  Met.  (Ky.)  410. 
2 


18  THE   CONTRACT. 

in  the  office  of  the  clerk  of  the  court,  the  judgment  of  which  was 
enjoined,  an  injunction  bond  not  thus  given  was  held  valid,  al- 
tliungh  the  injunction  would  have  been  dissolved  for  want  of  a 
proper  bond,  if  objection  had  been  made.*  The  sureties  on  the  bond 
of  a  school  fund  commissioner,  whose  bond  has  not  been  approved 
bj  the  proper  authorities,  but  who  has  entered  upon  and  exercised 
the  duties  of  the  office,  and  appropriated  money,  are  liable  on  the 
bond  at  common  law.  The  bond  not  being  good  as  a  statutory, 
but  as  a  common  law  bond,  perhaps  the  common  law  I'emedy  on 
it  would  have  to  be  pursued,  and  not  the  statutory  remedy  on 
statutory  bonds." 

§  14.  Obligation  of  surety  must  be  delivered,  and  takes  effect 
from  time  of  delivery. — In  order  to  bind  a  surety  or  guarantor 
his  contract  must  be  delivered,  and  it  takes  effect  from  the  time  of 
its  delivery.  A  made  a  promissory  note  and  delivered  it 
to  the  payee,  and  the  payee  then  gave  the  note  to  A 
in  order  that  he  might  get  a  surety  to  it  and  return  it. 
A  got  C  to  sign  the  note  as  surety,  but  then  refused 
to  deliver  it  to  tlie  payee.  The  payee  then  sued  A  and  C 
on  the  note,  and  it  was  held  that  C  was  not  liable.^  The  note  had 
never  been  delivered  after  C  signed  it,  as  A  was  in  no  sense  the 
agent  of  the  payee  to  receive  a  delivery  of  the  note.  Moreover 
if  C  had  been  compelled  to  pay  the  note  he  could  not  have  re- 
covered indemnity  from  A,  because  A  by  refusing  to  deliver  the 
note  had  refused  to  consent  to  C  being  his  surety.  Where  a  bond 
is  signed  by  the  principal  on  Saturday  and  by  the  surety  on  Sun- 
day, but  is  not  delivered  till  Monday,  it  takes  effect  from  its  de- 
livery and  the  surety  is  bound.''  A  law  provided  that  in  no  case 
should  a  bank  cashier's  bond  be  signed  by  a  director  of  the  bank 
as  surety.  A  bank  director  signed  such  a  bond  as  surety,  but  it 
was  not  Approved  till  his  term  as  director  expired.  Held,  the 
bond  took  effect  from  the  time  of  its  approval  and  the  surety  was 
bound.^ 

§  15.  Surety  bound  v^hen  his  name  not  mentioned  in  body  of 
instrument — Not  bound  when  penalty  of  bond  blank. — Although 

'  Cobb  V.  Curts,  4  Littell,  (Ky.)  235.  St.  448.    To  similai-  effect,  see  State  v. 

^  The  State  v.  Fredericks,  8  Iowa,  Young,  2-3  Minn.  551. 

553.  5  Franklin  Bank  v.  Cooper,  36  Me. 

8  Chamberlain  v.  Hopps,  8  Vt.  94.  179. 
*  Commonwealth  v.  Kendig,   2  Pa. 


IMPLIED    GUARANTY.  19 

the  name  of  a  surety  is  not  mentioned  in  any  part  of  the  body 
of  a  bond,  but  a  blank  intended  for  it  is  left  unfilled,  yet  if  he 
sign,  seal  and  deliver  it  as  his  bond,  he  is  bounds  So  where  the 
name  of  the  surety  is  not  mentioned  in  the  obligatory  part  of  a 
bond,  but  is  mentioned  in  the  recital  of  the  condition,  if  he  sie-n. 
seal  and  deliver  it  he  is  bound.''  Where  one  signs  a  lease  be- 
tween the  signature  of  the  lessor  and  lessee,  in  which  lease  it  is 
said  that  the  lessee  "binds  himself  and  his  security,"  but  no 
name  of  a  surety  is  mentioned  in  the  lease  and  the  lease  is  signed 
in  the  presence  of  others  who  sign  it  as  witnesses,  the  party  who 
signs  between  the  signature  of  the  lessor  and  lessee  will  be  held 
as  surety  on  the  lease.^  So  where  a  lease  had  been  signed  by  the 
lessor  and  lessees,  and  D,  whose  name  was  not  mentioned  in 
the  lease,  signed  his  name  to  it  after  the  names  of  the  lessees, 
adding  to  his  name  the  word  "  surety,"  it  was  held  that  it  suffi- 
ciently appeared  that  D  was  the  surety  of  the  lessees  and  that  he 
was  originally  and  not  collaterally  liable.*  A  promissory  note 
commenced  as  follows :  "For  value  received,  the  Fishkill  Iron 
company  promise  to  pay,"  etc.  This  note  was  signed  hj  the 
president  and  agent  of  the  company,  their  designations  following 
their  names.  It  was  also  signed  by  four  other  persons.  Held, 
the  last  four  signers  were  liable  as  sureties  on  the  note,  although 
they  were  not  mentioned  nor  referred  to  in  it.  The  court  said  it 
was  sufficient  that  the  instrument  expressed  an  obligation  on  the 
part  of  the  principal.  A  blank  indorsement  would  have  been 
sufficient  to  hold  the  surety  and  this  was  quite  as  effectual  as  a 
blank  indorsement.^  "Where,  however,  the  penalty  of  a  bond  is 
blank,  it  is  void  as  to  the  sureties,  and  it  cannot  be  held  to  be  a 
covenant  and  thus  bind  them.® 

§  16.  When  party  liable  on  implied  guaranty. — Although  a 
surety  or  guarantor  generally  becomes  bound  by  express  contract, 
yet  persons  are  sometimes  held  as  sureties  or  guarantors  who  do 

^Joyneri'.   Cooper,   2    Bailey    Law  'Holden    v.    Tanner,     6    La.    An. 

(So.  Car.)  199;  Valentine  r.  Christie,  1  74. 

Robinson    (La.)    293;    Potter  v.   The  *  Perkins     r.    Goodman,    21   Barb. 

State,    23   Ind.  650;  Scheid  v.  Leib-  (N.  Y.)  218. 

shultz,   51   Ind.  38;   Neil  r.  Morgan,  *  Parks  t\  Brinkerhoff,  2  Hill  (N.  T.) 

28  lU.  524;  Danker  v.  Atwood,   119  663. 

Mass.  146.  *  Austin  v.  Richardson,  1  Gratt.  (Va.) 

^Bartleyr.  Tates,   2  Hen.  &  Mun.  310. 
(Va.)  398. 


20  THE    CONTRACT. 

not  SO  become  bound.  The  law  will,  under  certain  circumstances, 
imply  such  contract.  Thus,  where  two  married  women  made  a 
promissory  note,  and  the  payee  indorsed  it  to  A  before  maturity, 
A  at  that  time  knowing  that  the  makers  were  married  women,  it 
was  held  that  the  indorsement  of  the  note  to  A  was  an  implied 
guaranty  that  the  makers  were  competent  to  contract  in  the  char- 
acter in  which,  by  the  terms  of  the  note,  they  purported  to  con- 
tract; and  the  fact  that  A,  when  he  took  the  note,  knew  the  makers 
Avere  married  women,  did  not  change  the  rule.^  So  the  vendor 
of  a  promissory  note  who  transfers  it  by  indorsement  expressed 
to  be  without  recourse,  impliedly  guaranties  the  genuineness  of 
the  signatures  of  the  prior  parties  whose  names  appear  on  the 
note.^  A  person  not  a  party  to  a  promissory  note,  and  who  does 
not  indorse  it,  but  who  sells  it  and  receives  the  money,  by  impli- 
cation guaranties  the  genuineness  of  the  signatures;  and  this, 
whether  he  receives  the  money  paid  for  the  note  for  himself 
or  for  another.  The  only  way  he  can  avoid  such  responsibility,  is 
by  an  agreement  to  the  contrary.^  So  the  purchaser  of  goods  who 
transfers  without  indorsement,  the  promissory  note  of  a  third 
party,  impliedly  guaranties  that  the  sum  expressed  in  the  note  is 
due.^  A  person  who  procures  notes  to  be  discounted  at  a  bank, 
impliedly  guaranties  the  genuineness  of  the  signatures  of  the 
makers  and  indorsers;  and  such  implied  contract  is  not  a  repre- 
sentation concerning  the  character,  credit  or  ability  of  another, 
within  the  statute  of  frauds;  and  such  person  may  be  sued  as  a 
guarantor  of  the  notes,  if  the  signatures  are  forged.^  The  reason 
on  which  the  last  preceding  cases  are  grounded  is  thus  well  ex- 
pressed by  the  court  in  the  case  last  cited:  "  It  seems  to" fall  under 
a  general  rule  of  law,  that  in  every  sale  of  personal  property  the 
vendor  impliedly  warrants  that  the  article  is,  in  fact,  what  it  is 
described  and  purports  to  be,  and  that  the  vendor  has  a  good  title 
or  right  to  transfer  it."  The  agent  of  another  for  the  sale  of  prop- 
erty, who  has  agreed  not  to  sell  for  credit  except  to  good  and 
responsible  parties,  and  to  take  no  paper  but  good  collectible  paper, 

^  Envin  r.  Downs,  15  New  York,  575.  *  Jones  v.   Yeargain,    1  Dev.  Law, 

To  similar  effect,  see  Ogden  v.  Blyden-  (Nor.  Car.)  420. 

burgh,  1  Hilton  (N.  Y.)  182.  6  Cabot  Bank  v.  Morton,  4  Gray,  156, 

^Dumont  v.  Williamson,    18  Ohio  per  Shaw,  C.  J.;  see,  also,  Jones  v. 

S*-  ^1^-  Kyde,  5  Taunt.  488. 

2  Lyons  r.  Miller,  6  Gratt.  (Va.)  427. 


PAKOL    EVIDENCE    OF    SURETYSHIP. 


21 


and  such  as  be  is  willing  to  guaranty,  and  who  takes  paper  he 
knows  to  be  worthless,  and  turns  it  over  to  his  employer  who  is 
ignorant  of  its  character,  is  liable  as  guarantor  of  such  paper. 
He  can  be  sued  and  judgment  had  against  him  without  the  paper 
being  returned  to  him.  He  is  not  entitled  to  the  paper  till  he 
pays  the  debt.^ 

§  1<.  Joint  maker  of  note  may  be  shown  by  parol  to  be 
surety. — In  view  of  the  fact  that  a  surety  is  entitled  to  certain 
rights  and  privileges  to  which  the  principal  is  not,  it  often  be- 
comes highly  important  to  determine  whether  a  party  to  an 
instrument  is  principal  or  surety,  and  if  in  fact  a  surety,  when 
and  where  that  fact  may  be  sho^vn.  When  several  parties  exe- 
cute a  joint  or  joint  and  several  promissory  note  not  under  seal, 
and  there  is  nothing  in  the  note  to  indicate  that  any  of  them  are 
sureties,  if  some  of  them  are  in  fact  sureties  and  this  is 
known  to  the  creditor,  such  sureties  may  both  at  law  and  in 
equity  show  by  parol  that  they  were  sureties  and  that  they  were 
known  to  be  such  by  the  creditor,  and  they  will  be  entitled 
to  all  the  rights,  privileges  and  immunities  of  sureties, 
and  will  be  discharged  by  any  act  of  the  creditor,  after 
he  had  knowledge  of  the  fact  of  suretyship,  which  would  dis- 
charore    anv    other    surety.^      But    it    must     apiiear    that    the 


any 

'  Clark  V.  Roberts,  26  Midi.  506. 

^Higdon  V.  Bailey,  26  Ga.  426;  Lime 
Rock  Bank  v.  Mallett,  34  Me.  547;  Id. 
42  Me.  349;  Grafton  Bank  v.  Kent,  4' 
New  Hamp.  221 ;  Matheson  v.  Jones, 
30  Ga.  306;  Piper  t\  Newcomer,  25 
Iowa,  221 ;  Cummings  v.  Little,  45  Me. 
183;  Kelley  t'.  Gillespie,  12  Iowa,  55; 
Bank  of  St.  Albans  v.  Smith,  30  Vt. 
148  ;  Davis  v.  Mikell,  1  Freeman,  Cli. 
R.  (Miss.)  548;  Fraser  v.  McConneil, 
23  Ga.  368;  Corielle  v.  Allen,  13  Iowa, 
289;  Roberts  v.  Jenkins,  19  La.  (Curry) 
453;  Brown  v.  Haggerty,  26  111.  469; 
Bradner  v.  Garrett,  19  La.  (Curry) 
455;  Bruce  v.  Edwards,  1  Stew.  (Ala.) 
11;  Jones  V.  Fleming,  15  La.  An.  522; 
Flynn  v.  Mudd,  27  111.  323;  Branch 
Bank  at  Mobile  v.  James,  9  Ala.  949; 
Kennedy  v.  Evans,  31  111.  258;  Stewart 
V.  Parker,  55  Ga.  656;  Riley  v.  Gregg, 


appear 

16  Wis.  666;  Mechanics  Bank  v. 
Wright,  53  Mo.  153;  McCarter  v. 
Turner,  49  Ga.  309  ;  Coats  v.  Swindle, 
55  Mo.  31;  Mariners'  Bank  v.  Abbott, 
28  Me.  280.  In  Mauley  v.  Boycot, 
decided  by  the  Queen's  Bench  in  1853, 
it  was  held  that  the  defense  could  not 
be  set  up,  unless  the  holder  when  he 
took  the  note  knew  of  the  suretyship 
and  agreed  to  treat  the  surety  as  such. 
But  in  Pooley  v.  Harradine,  7  Ell.  & 
Bl.  431,  decided  in  1857,  and  inGreen- 
ough  V.  McClelland,  2  Ell.  &  Ell.  424, 
decided  in  1860  by  the  same  court,  it 
was  held  that  under  the  statute,  allow- 
ing equitable  defenses  to  be  made  at. 
law,  the  defense  might  be  made  at 
law,  where  the  creditor  knew  of  the 
fact  of  suretyship  but  did  not  agree  to 
hold  the  surety  as  such.  The  court 
also  held  that,  but  for  the  statute  the 


22  THE    CONTKACT. 

creditor  at  the  time  the  act  complained  of  was  done,  knew  of  tlie 
fact  of  suretysliip.^  The  great  weight  of  authority  and  of  reason 
is  in  ftivor  of  the  Law  as  above  stated.  The  cause  alleged  against 
showing  the  fact  of  suretyship  by  parol  is,  that  it  contradicts  or 
varies  the  terms  of  the  instrument  signed  by  the  surety.  The 
answer  to  this  is,  that  such  proof  does  not  controvert  the  terms 
of  the  contract,  but  is  simply  proving  a  ftict  outside  of,  and  be- 
yond, such  terms.^  "  It  is  a  fact  collateral  to  the  contract,  and  no 
part  of  it."  ^  "  It  is  not  to  affect  the  terms  of  the  contract,  but 
to  prove  a  collateral  ftict,  and  rebut  a  presumption."  *  The  par- 
ties still  remain  bound  by  the  same  instrument  and  in  the  same 
manner.  "  Can  you  not  prove  the  defendant  an  infant,  a  feme 
covert^  or  a  bankrupt,  in  order  to  discharge  him  or  her,  and  that, 
too,  while  others  remain  bound?  Why  not  also  prove  him  a 
surety?"'  "The  general  rules  of  evidence  are  the  same  at  law 
as  in  equity;  and  it  is  no  more  competent  to  vary  the  terms  of  a 
written  instrument  by  parol  evidence  in  equitable  actions,  than 
in  those  strictly  legal,  unless  in  exceptional  cases,  for  the  purpose 
of  maintaining  an  action  or  defense  under  some  recognized  head 
of  equitable  jurisdiction.  The  confusion  and  apparent  conflict  in 
the  authorities  must,  I  think,  have  originated  in  the  idea  that 
defenses  of  this  character  were  equitable  in  their  nature,  and 
could  only  be  available  in  a  court  of  equity.  "When  it  was  con- 
ceded that  they  were  equally  available  in  a  court  of  law,  it  is  dif- 
ficult to  find  a  reason  for  excluding  the  same  evidence  at  law  that 
is  admissible  in  equity.  However  this  may  be,  and  without  in- 
voking any  equitable  rule,  a  conclusive  answer  to  the  objection  to 
this  evidence  in  any  court,  in  my  opinion,  is  that  it  does  not  tend 
to  alter  or  vary  either  the  terms  or  legal  effect  of  the  written  in- 
strument. The  contract  was  in  all  respects  the  same,  whether  the 
defendant  was  principal  or  surety.  In  either  case,  it  was  an  ab- 
solute promise  to  pay  $1,000  one  day  after  date,  nothing  more  and 

defense  could  not  have  been  made  at  ''Valentine,  J.,  in  Rose  v.  Wijliams, 

law,  but  must    have  been  made  in  5  Kansas,  483. 

equity.    See,  to  same  effect,  Perley  r.  ^Shaw,  C.  J.,  in  Carpenter  v.  Kinj?, 

Loney,  17  Up.  Can.  Q.  B.  R.  279.  9  Met.  511. 

1  Ncel  V.  Harding:,  2  Met.  (Ky.)247,:  *Shaw.  C.  J.,  in  Harris  v.  Brooks, 

Orvis  f.  Newell.  17  Conn.  97;  Wilson  21  Pick.  195;  also  Breese,  J.,  in  Ward 

f.    Foot,  11  Met.  285;  Murray  v.  Gra-  r-  Stout,  32  111.  399. 

ham,  29  Iowa,  520.  °  Lumpkin,  J.,  in  The  Bank  v.  Mum- 
ford,  6  Ga.  44. 


PAROL   EVIDENCE    OF    SUEETYSIIIP.  23 

nothinoj  less.  There  is  neither  condition  nor  contingency.  It 
would  have  been  precisely  the  same  contract  if  the  defendant  had 
added  the  word  "  surety  "  to  his  name.  The  addition  of  that  word 
would  not  have  varied  it  in  the  slightest  degree.  The  only  ser- 
vice it  would  have  performed,  would  have  been  to  give  notice  to 
the  other  party  of  the  fact.  If  this  is  shown  aliunde,  it  is  equally 
effective."^  The  equity  of  the  surety  to  be  discharged  when  he  is 
prejudiced  by  the  act  of  the  creditor,  "  does  not  depend  upon  any 
contract  with  the  creditor,  but  upon  its  being  inequitable  in  him 
to  knowingly  prejudice  the  rights  of  the  surety  against  the  prin- 
cipal; "  '^  and  it  is  as  inequitable  in  the  creditor  to  prejudice  those 
rights  when  he  is  informed  of  the  fact  of  suretyship  by  parol  as 
when  he  is  informed  of  it  by  the  instrument  itself.  It  has,  how- 
ever, been  held  by  courts  of  high  respectability,  that  the  fact  of 
suretyship  could  not,  under  the  foregoing  circumstances,  be  shown 
by  parol.'  It  may  be  shown  by  j)arol  that  the  maker  of  a  j^rom- 
issory  note  was  in  fact  an  accommodation  drawer  for  a  fii-m  who 
were  second  indorsers,  and  he  will  be  entitled  to  the  same  rights 
as  any  surety,*  A  party  signed  a  promissory  note,  and  added 
the  word  "  security  "  after  his  name.  It  was  held  that  it  might 
be  shown  by  parol  that  he  was  the  principal.  The  court  said  the 
addition  of  the  word  "  security  "  is  "  at  most  the  statement  of  a. 
fact  forming  no  part  of  the  contract;  and  if  utitrue,  may  be  shown 
to  be  so  by  parol  as  well  as  any  other  fact."  ' 

*  See    the    elaborate     opinion     of  Donaldson,  5  Md.  389.     In  Hartinan 

Church,  C.  J.,  in  Hubbard  v.  Gurney,  v.  Burlingame,  9Cal.  557,  it  was  held 

64  New  York,  457.  that  a  joint  maker  of  a  promissory 

^Coleridge,  J.,  in  Pooley  f.  Harrad-  note,  although  known  by  the  holder 

ine,  7  El.  &  Black.  431.  to  be  a  surety,  was  not  entitled  to 

*Shrivery.    Lovejoy,    32   Cal.   574;  notice  of  demand  and  non-payment. 

Bull  V.  Alien,  19  Conn.  101;  Campbell  The  same  thing  was  held  substantially 

V.  Tate,  7  Lansing  (N.  Y,)  370;  Hen-  in   Kritzer  v.  Mills,  9  Cal.   21.     See, 

drickson  v.  Hutchinson,  5  Butcher  (N.  also,  on  this  subject  Aud  v.  Magruder, 

J.)  180.     In  Kerr  v.  Baker,  Walker  10  Cal.  282. 

(Miss.)  140,  and  Farrington  r.  Gall  a-  *  Marsh  t;.  Consolidation  Bank,   48 

way,  10  Ohio,  543,  it  was  held  it  could  Pa.  St/  510. 

not  be  shown  at  law.     In   Stroop  v.  *  Rose  v.  Madden,  1  Kansas,  445. 

McKenzie,  38  Tex.  132,  and  in  Ball  v.  In  Sisson  v.  Barrett,  2  New  York,  406, 

Gilson,    7  Uijper  Can    C.    P.  R.  531,  a  promissory  note  was  executed  by  A, 

it  was  held  it  could  not  be  shown  un-  B  and  C,  the  principal  debtor  being 

less  it  was  also  shown  that  the  creditor  A.  The  last  signer  of  the  note,  C,  added 

agreed  to  hold  the    surety  as  such.  the  word   "  surety  "  to  his  signature: 

The  same  thing  was  held  in  Yates  v.  Held,  that  without  extrinsic  proof,  C 


24  THE    COXTKACT. 

§  IS.  Joint  maker  of  sealed  instrument  may  be  shown  by 
parol  to  be  surety. — AVliere  the  instrument  is  under  seal  tlie  fact 
of  suretvsliip  niny  be  shown  by  parol  at  law,  the  same  as  if  it  was 
not  under  seal,  although  there  is  not,  perhaps,  quite  the  same 
unanimity  in  the  decisions  on  this  point  as  there  is  with  refer- 
ence to  unsealed  instruments.  The  same  reasons  %vhich  allow  the 
fact  of  suretyship  to  be  shown  by  parol  in  the  case  of  unsealed 
instruments  apply  with  equal  force  to  the  case  of  sealed  instru- 
ments, and  the  uniform  tendency  of  the  later  decisions  is  to 
allow  a  surety  to  make  the  same  defenses  at  law  as  in  equity. 
It  has  accordingly  been  held  that  one  of  the  makers  of  a  joint 
note  under  seal  may,  at  law,  show  by  parol  that  he  is  only  a 
surety.'  One  of  the  makers  of  a  joint  and  several  sealed  note 
may,  at  law,  show^  by  parol  that  he  is  a  surety  only.^  The  same 
thing  was  held  with  reference  to  a  sealed  note,  where  a  statute 
had  placed  sealed  and  unsealed  instruments  on  the  same  footing.^ 
One  of  two  or  more  obligors  in  a  joint  and  several  bond  may 
prove  by  parol  that  he  is  a  surety  only  where  nothing  to  indicate 
the  fact  appears  on  the  bond,  and  he  will  be  entitled  to  give  the 
creditor  statutory  notice  to  sue,  the  same  as  any  other  surety,* 
and  will  be  discharged  at  law  by  time  given  the  j)i*incipal.^  A 
gave  his  individual  bond  and  a  mortgage  to  secure  the  same  for 
a  sum  of  money  borrowed  by  him,  one  half  of  which  was  for  the 
use  of,  and  was  used  by,  B.  Afterwards,  A  paid  all  the  money 
and  sued  B  at  law  for  his  share,  and  it  was  held  that  A  might 
show  the  fact  of  his  suretyship,  although  it  did  not  appear  from 
the  bond  or  mortgage.®  A  lease  was  made  to  two,  one  of  whom 
was  sole  occupant  of  the  premises  which  he  held  over  the  term, 
and  debt  for  the  rent  of  the  whole  period  of  actual  occupancy 
was  brought  against  both.  Held,  that  the  lessee  who  did  not 
occupy,  might  show  by  parol  that  he  was  only  a  surety,  and  con- 
was  not  to  be  presumed  to  be  a  surety  held  that  the  fact  could  not,  at  law, 
for  both  A  and  B.  be  shown  by  parol. 

*  Rogers  v.  School  Trustees,  ^46   111.  ^  Smith  v.  Clopton,  48  Miss.  66. 

428;  Smith  v.  Doak,  3  Tex.  215.  *Creight7.  Hedrick,  5  West  Va.  140; 

'  Fowler  v.  Alexander,  1  Heiskell  see,  to  same  effect,  Scott  v.  Bailey,  2i 
(Tenn.)  425.    This  case  was  decided  in      Mo.  140. 

1870.    The  same  court,   in   1836,   in  ^  Dickerson  v.  Commissioners  of  Rip- 

Deberry  v.  Adams,  9  Yerg.  (Tenn.)      ley  Co.  6  Ind.  128. 
52,  and  in   1847,  in  Dozier  v.  Lea,  7  «  Metzner  v.  Baldwin,  11  Minn.  150. 

Humph.  (Tenn.)  520,  in  similar  cases, 


ckeditok's  knowledge  of  sueetysiiip.  25 

sequently  not  liable  for  the  holding  over.^  On  the  contrary,  it 
has  been  held  that  when  the  instrument  is  under  seal,  the  fact 
of  suretyship  cannot,  at  law,  be  shown  by  parol,^  but  it  may  in  all 
cases  be  shown  in  equity.^ 

§  19.  If  creditor  knew^  of  suretyship  -when  he  did  the  act 
complained  of,  this  is  sufBcient  to  secure  surety  his  rights. — 
The  fact  that  the  holder  of  a  negotiable  instrument  did  not  know 
of  the  suretyship  of  some  of  the  parties  when  he  took  it,  will 
make  no  difterence  in  the  rule  before  stated.  If  lie  had  no  knowl- 
edge of  the  fact  when  he  took  the  instrument,  but  was  informed 
of  it  before  doing  the  act  complained  of,  this  will  be  sufficient  to 
entitle  the  surety  to  all  the  rights  of  any  surety.*  A  promissory 
note  was  signed  by  several  parties,  two  of  them  being  in  fact  sur- 
eties, but  that  not  appearing  from  the  note,  the  payee  assigned 
the  note  to  a  party  who  did  not  know  of  the  suretyship  at  the 
time  of  the  assignment,  but  was  afterwards  informed  of  it,  and 
afterwards  gave  time  to  the  principal:  Held,  the  sureties  were 
discharged.^  The  court  said:  "  The  principle  obtains  for  the  pro- 
tection of  the  sureties,  and  the  holder  of  such  notes,  knowing  their 
relation,  should  avoid  any  act  to  endanger  their  rights;  and  we 
are  unable  to  perceive  the  distinction  as  to  when  the  knowledge 
was  obtained — whether  before  or  after  the  purchase,  so  that  it 
was  known  before  the  extension  was  made."  In  another  case, 
depending  on  the  same  state  of  facts,  the  same  thing  was  held. 
The  court  said:  "The  injury  to  the  surety  is  the  same  as  if  the 
creditor  had  possessed  the  knowledge  at  the  time  the  note  was 
taken."  ^  A  financial  company,  by  agreement  with  an  agent, 
accepted  bills  of  exchange  which  were  discounted  for  the  agent  by 
a  discount  company,  the  agent  guarantying  payment  of  the  bills. 
The  discount  company  was  not,  at  the  time,  aware  of  the  relations 
between  the  acceptors  and  the  agent,  but  was  informed  before  the 

^  Kennebec  Bank  v.  Turner,  2  Green-  sing  (N.  Y.)  97  ;  Pooley  v.  Harracline, 

leaf  (Me.)  42.  7  Ell.  &  Black,  431  contra,  Bank  of 

*Levyt).  Hampton,  1  McCord  Law  Upper  Canada  f.  Thomas,  11  Up.  Can. 

(So.  Car.)  145;  Pritcliard  v.  Davis,    1  C.  P.  R.  515. 

Spencer  (N.  J.)  205;  Willis  v.  Ives,  1    •      ^Lauman  v.  Nichols,  15  Iowa,  161. 

Sm.  &  Mar.  (Miss.)  307.  "Wheat  v.   Kendall,  6  New  Hamp. 

^  See  cases  last  cited  and  Burke  v.  504.    To  a  similar  effect,  see  Smith  v. 

Cruger,  8  Tex.  66.  Shelden,  35  Mich.  42;  Wythes  v.  La- 

*Bank  of  Missouri  v.  Matson,   26  bouchere,  3De  Gex&  Jones,  593. 
Mo.  243;  Colgrove  v.  Tall  man,  2  Lan- 


20  THE   CONTRACT. 

bills  matured,  that  the  agent  was  jDrincipal  and  the  acceptors  were 
sureties,  and  afterwards  gave  time  to  the  agent:  Held,  the  ac- 
ceptors were  discharged,  and  might  come  into  equity,  and  have 
the  hills  canceled.^  This  rule  is  the  logical  and  necessary  result 
of  holding  that  parol  evidence  of  the  creditor's  knowledge  of  the 
tact  of  suretyship  can  be  given  at  all.  It  is  the  fact  of  knowledge 
on  the  part  of  the  creditor,  coupled  with  certain  equitable  princi- 
ples, and  not  any  contract  between  him  and  the  surety,  which 
raises  the  equity  on  behalf  of  the  surety,  and  it  necessarily  fol- 
lows that  the  equity  exists  from  the  time  the  creditor  has  the 
knowledge. 

§  20.  Surety  must  show  that  creditor  knew  of  suretyship — 
"What  is  sufficient  evidence  of  the  fact. — When  a  surety  sets  np 
claims  depending  on  that  relation  and  the  fact  of  suretyship  does 
not  appear  from  the  instrument  signed  by  him,  he  must,  in  order 
to  sustain  such  claims,  prove  that  the  creditor  knew  of  the 
suretyship.^  Where  a  promissory  note  was  held  by  the  payee 
and  the  note  did  not  show  the  fact  of  suretyship,  but  it  was  proved 
that  one  of  the  makers  was  only  a  surety,  the  court  held  that  it 
would  be  presumed  that  the  creditor  knew  of  the  snretyshijD.'^ 
AVhere  several  persons  execute  a  promissory  note  and  there  is 
nothing  on  its  face  to  show  their  relations  to  each  other,  there  is 
110  presumption  from  the  order  in  which  they  sign  that  any,  or 
which  of  the  signers,  are  sureties.*  Where  three  j^arties  signed  a 
bond  and  it  did  not  appear  from  the  face  of  the  bond,  who,  if 
any  one,  was  surety,  the  circumstances  of  one  obligor  making 
]iayments,  and  being  resorted  to  by  the  creditor,  raises  a  strong 
presumption  that  he  was  the  principal  ;  while  the  circumstances 
of  another  obligor  not  making  payments  and  not  being  called 
upon  for  them,  raises  a  presumption  that  he  was  only  surety.*    A 

'  Oriental  Financial  Corporation  v.  was  held  that  whenever  one  having 

<  >verend,  Law  Rep.  7  Chancery  Appl.  no  interest  in  a  note,  becomes  a  party 

<  'as.  142.  This  decision  was  affirmed  to  it  at  the  request  and  for  the  accora- 
l)y  the  House  of  Lords  on  appeal,  in  modation  of  another,  the  relation  of 
1874,  and  is  the  settled  law  of  Eng-  principal  and  surety  exists,  and  the 
land.  Liquidators  of  Overend,  Gurney  original  holder,  between  whom  and  the 
<S:  Co.  V.  Liquidators  of  Oriental  Fi-  principal  the  consideration  passed,  is 
nancial  Corporation,  Law  Rep.  7  Eng.  presumed  to  have  knowledge  of  the  fact. 
A:  Irish  Appl.  Cas.  348.  *Paul  v.   Berry,   78  111.    158;  Sum- 

*  Wilson  V.  Foot,  11  Met.  285.  merhill  v.  Tapp,  52  Ala.  227. 

'Ward  V.    Stout,   32    111.399.     In  ^Doughty  v.  Bacot,  2  Desaussure, 

Cummings  v.  Little,  45  Me.   183,  it      Eq.,  (So.  Car.)  546. 


PROPEETY  PLEDGED  FOE  ANOTIIEe's  DEBT.  27 

promissory  note,  some  of  the  makers  of  which  were  in  fact  sure- 
ties, thou^^h  nothing  to  indicate  the  suretyship  appeared  on  the 
note,  was  transferred  to  A  after  it  was  overdue  and  discredited. 
A,  without  any  actual  notice  of  the  suretyship,  gave  time  to  the 
principal:  Held,  the  fact  that  the  note  was  overdue,  was  not  no- 
tice to  A  of  the  fact  of  suretyship,  and  that  the  sureties  were  not 
discharged.^  The  court  said:  "He  wdio  takes  a  discredited  note  is 
presumed  to  be  acquainted  with  every  defense  to  which  it  is  sub- 
ject. But  whether  some  of  those  whose  names  are  upon  a 
note  are  sureties,  is  a  matter  wholly  immaterial  to  the  person 
who  purchased  the  note,  and  he  cannot  be  presumed  to  have  in- 
quired or  to  have  learnt  in  what  character  they  signed,  because 
that  was  a  circumstance  with  which  he  had  no  concern." 

§  21.  Property  pledged  by  one  for  debt  of  another,  occupies 
position  of  surety. — When  property  of  any  kind  is  mortgaged  or 
pledged  by  the  owner  to  answer  for  the  debt,  default  or  miscarriage 
of  another  person,  such  property  occupies  the  position  of  a  suretv 
or  guarantor,  and  anything  which  would  discharge  an  individual 
surety  or  guarantor  wlio  was  personally  liable,  will,  under  similar 
circumstances,  discharge  such  property.^  This  rule  is  ajDplicable 
to  every  variety  of  circumstances.  A  being  indebted  to  B,  and 
C  being  indebted  to  A,  they  get  together  and  agree  that  B  shall 
surrender  up  A's  note  and  take  C's  in  its  place,  A  at  the  same 
time  canceling  his  claim  against  C  for  the  same  amount,  and  it 
is  done  accordingly.  C  gives  B  a  mortgage  to  secure  his  note 
thus  given  on  a  piece  of  his  property  ;  A  also  gives  B  a  mortgage 
on  some  of  his  property  to  secure  the  same  note  of  C:  Held,  that 
by  this  transaction  A's  property  became  the  surety  of  C,  and  was 
discharged  by  the  giving  of  time  to  C.^  A  material  man  took 
the  note  of  the  contractor  for  the  materials  furnished  for  a  build 
ing,  and  extended  the  time  of  payment.  The  owner  having  no 
notice  of  the  claim,  paid  the  contractor  in  full,  before  the  note 
fell  due:  Held,  the  building  occupied  the  position  of  surety  for 

^Nichols  V.  Parsons,  6  New  Hamp.  neetown,  14  111.   20;  Lord  Harberton 

30.  V.  Bennett,  Beatty  (Ir.  Ch.)  386;  Row- 

2  Robinson  v.  Gee,  1  Vesey  Sr.  251;  an  v.  Sharp's  Rifle  Co.,  33    Conn.  1; 

Royal   Canadian  Bank  v.   Payne,    19  Union   Bank  v.  Govan,  10  Smedes  & 

Grant's    Ch.   R.,  .  180;     Christiner  v.  Mar.,  (Miss.)  333;  Bowker  v.  Bull,  1 

Brown.  16  Iowa,  130;  Denison  v.  Gib-  Simons,-  (N.  S.)  29;  White  v.  Ault,  19 

son,  2-1  Mich.  187;    Joseph  v.  Heaton,  Ga.  551. 
5  Grant's  Ch.  R.,  636;  Ryan  v.  Shaw-  MVhite  v.  Ault,  19  Ga.  651. 


28  THE    CONTRACT. 

the  contractor,  and  tliat  the  agreement  to  give  time  discharged 
the  hiiilding  from  the  lien.^  When  a  wife  mortgages  her  real 
estate  for  the  debt  of  a  iirm  of  which  her  husband  is  a  member, 
Buch  real  estate  occupies  the  position  of  a  surety,  and  if  it  be- 
comes released  at  law,  equity  will  not  charge  it.'  A  held  a  judg- 
ment against  B,  which  was  a  lien  upon  two  tracts  of  B's  land. 
E  sold  one  tract  to  C,  the  other  tract  being  sufficient  to  pay  the 
debt.  D  with  a  knowledge  of  the  sale  of  the  one  tract  to  C,  pro- 
cured a  release  from  A  of  the  other  tract,  and  then  bought  it  of 
B;  and  also  bought  A's  judgment  against  B;  Held,  C's  land  was 
discharged  from  the  lien  of  the  judgment.  After  the  sale  of  the 
tract  to  C,  the  creditors  of  B  were  bound  to  resort  to  B's  other 
land  before  coming  on  that  sold  to  C.  It  occupied  the  position 
of  a  surety,  and  the  surety's  right  to  subrogation  being  de- 
stroyed, it  was  discharged.^  On  the  same  princiiDle,  where  a 
mortgagor  sells  a  portion  of  the  mortgaged  premises,  and  in  the 
deed  of  conveyance  expresses  that  the  same  is  "subject  to  the 
payment  by  the  said  grantee  of  all  existing  liens  upon  said  prem- 
ises," the  effect  of  this  charge  is  to  make  tlie  part  of  the  premises 
so  conveyed  the  principal  debtor  for  a  proportionate  part  of  the 
mortgage  debt,  and  the  mortgagor  a  surety  only.*  So  where  land 
subject  to  a  judgment,  was  sold  for  its  full  value  by  the  judg- 
ment debtor  to  a  third  person,  it  was  held  that  the  land  occupied 
the  position  of  a  surety,  and  was  discharged  by  the  creditor 
releasing  subsequently  acquired  securities  for  the  debt.^ 

§  22.  Property  of  wife  pledged  for  debt  of  husband,  occupies 
position  of  surety. — "While  a  married  woman  cannot  usually  be- 
come personally  bound  for  the  debt  of  her  husband,  she  may  or- 
dinarily pledge  or  mortgage  her  separate  property  for  his  debt, 
and  if  she  does  so,  sucli  property  occupies  the  position  of  a 
surety  or  guarantor,  and  will  be  discharged  by  anything  that 
would  discharge  a  surety  or  guarantor  who  was  personally  liable.'' 

^Ilill  t?.  Witmer,    2   Philadelphia,  Denison  t\  Gibson,  24  Mich.  187;  Ag- 

(Pa.)  72.  new  v.  Merritfc,  10  Minn.   308;  Wal- 

« LffFingwell  v.  Freyer,  21  Wis.  392.  lace  v.  Hudson,  37  Tex.  456;  Wolf  v. 

^Lovn-y  V.  McKinney,  G8  Pa.  St.,  Banning-,  3  Minn.  202;  Spear  v.  Ward, 

294.  20  Cal.   659;   Niemcewicz  ?;.  Gahn,  3 

Mloy  r.  Bramhall,  4  C.   E.  Green,  Paige,  614;  Stamford.  &c., Banking  Co 

(N.  J.)  563.  r.  Ball,  4  De.  Gex.,  Fih.  and  J.,  310, 

'  Barnes  t\Mott,  64  New  York,  397.  Gahn  r.  Niemcewicz,  11  Wend.  312; 

8  Johns  t).  Reardon,    11    Md.  465;  Knight  f.  Whitehead,  26  Miss.,  245; 


MARKIED    woman's   PKOPERTY.  29 

Where  a  married  woman  mortgages  her  separate  real  estate  for 
the  debt  of  her  husband,  she  will,  after  his  death,  be  entitled  to 
have  her  estate  exonerated  out  of  his  assets.  "  In  such  case  the 
wife  is  regarded  as  a  surety."  ^  Where  a  married  woman  pledged 
her  property  to  indemnify  the  surety  of  her  husband,  the  prop- 
erty thus  pledged  was  treated  in  all  respects  as  a  surety.^  Where 
a  husband  mortgages  his  property  for  his  debt,  and  in  the  same 
mortgage  the  wife  conveys  her  own  separate  property  as  security 
for  the  same  debt,  her  property  so  conveyed  will  be  treated  in 
all  respects  as  a  surety.^  Where  the  fact  of  suretyship  does  not 
appear  from  the  mortgage,  the  wife  must  show  tliat  the  creditor 
knew  of  the  suretyship  in  order  to  entitle  the  property  to  stand 
in  the  position  of  a  surety.  But  the  fact  of  suretyship  may  be 
proved  by  parol.*  Where  a  mortgage  made  by  husband  and 
wife,  of  the  wife's  property  for  the  husband's  debt,  recited  that  it 
was  made  in  consideration  of  $6,000  to  the  mortgagors,  and  "  each 
of  them  "  paid,  it  was  held  the  wife  might  sliow  by  parol  that  the 
debt  was  that  of  the  husband,  and  thus  avail  herself  of  the  rights 
of  a  surety  with  reference  to  the  property.^  Where  the  title  to  the 
wife's  property  mortgaged  for  her  husband's  debt  is  recorded, 
such  record  will  be  sufficient  notice  to  the  creditor  of  the  fact  of 
suretyship.^  When  a  husband  borrows  money  and  secures  it  by 
mortgage  on  his  wife's  lands  which  she  executes  with  him,  and 
he  lays  out  the  money  in  permanent  buildings  and  improve- 
ments on  such  lands,  the  lands  do  not  occupy  the  position  of  a 
surety.  The  debt  is,  in  reality,  that  of  the  wife.'^  A  wife  who 
joins  witli  lier  husband  in  a  mortgage  of  his  real  estate  for  t]ie 
j)ayment  of  his  debt,  does  not,  as  to  such  estate,  occupy  the  po- 
sition of  a  surety.^  A  liusband  mortgaged  his  real  estate  to 
secure  his  debt,  and  his  wife  joined  in  the  mortgage,  and  waived 

Vartie  v.  Underwood,  18  Barb  (N.  Y.)  312;  Niemcewicz  v.  Galin,  3  Paige, 

561;    Smith  v.    Townsend,    25    New  614. 

York,  479;  Bank  of  Albion  v.  Burns,  ^  Spear  r.  Ward,  20  Cal.  659. 

46  New  York,  170;  Coats  v.  McKee,  26  ^  Bank  of  Albion  v.  Burns,  46  New 

Ind.  223;  Wilcoxi;.  Todd,  64Mo.  388;  York,   170;    Smith  v.   Townsend,  25 

Purvis  V.  Cartsaphan,  73  Nor.  Car.  575.  New  York,  479. 

^  Knight  V.  Whitehead,  26  Miss.  245.  "^  Dickinson  v.  Codwise,  1  Sandford's 

2  Hodgson  V.  Hodgson,  2  Keen,  704.  Ch*  R.  214. 

^Wheelwright  v.  De  Peyster,  4  Ed-  ^Hawleyv.  Bradford,  9  Paige,  200. 

wards' Ch.  R.  232;  Loomerv.  Wheel-  But  see   Dawson  v.   Bank  of  White- 

wright,  3  Sanford's  Ch.  R.  135.  haven,  Law  Rep.  4,  Ch.  Div.  639. 

*Gahn  V.    Niemcewicz,  11   Wend. 


30  THE   CONTRACT. 

lier  homestead  rights.  It  was  held  she  did  not  with  reference  to 
such  homestead  rights,  occupy  the  position  of  a  surety,  and  could 
not  talce  advantage  of  time  given  the  husband.^  The  court  ad- 
mitted that  if  the  separate  estate  had  been  mortgaged,  she  would 
have  been  entitled  to  the  rights  of  a  surety,  but  said  of  a  home- 
stead, "  if  it  is  an  estate,  it  is  such  an  estate  as  has  never  been 
defined  by  law,  an  estate  unknown  to  the  common  law,  techni- 
cally, no  estate  at  all." 

§  23.  When  retiring  member  of  firm  becomes  surety  of  other 
partners  for  firm  debts. — When  one  member  of  a  partnersliip  re- 
tires from  the  firm,  and  the  remaining  members  agree  with  him 
to  pay  the  firm  debts,  and  these  facts  are  known  to  the  creditor, 
the  member  so  retiring  will  be  considered,  in  law,  a  surety.^  A 
and  B  being  partners  and  indebted,  A  died.  B  then  formed  a 
partnership  with  D,  and  B  and  D  agreed  to  pay  the  debts  of 
the  old  firm.  The  creditor  knew  of  this,  and  gave  time  of  ipa,j- 
ment  to  B  and  D  for  three  years,  for  the  debt  of  the  old  firm. 
Held,  the  estate  of  A  occupied  the  position  of  a  surety,  and  was 
discharged.^  If  a  retiring  member  of  a  firm  agrees  to  bear  a 
portion  of  the  loss  upon  a  note  taken  by  the  other  partners  towards 
their  distributive  share  of  the  partnership  eflfects,  provided  the 
note  cannot  be  collected  from  the  maker,  he  occupies  the  position 
of  surety  for  the  maker  ^ro  tanto,  and  will  be  discharged  if  the 
holders  of  the  note  give  time  to  the  maker.*  A  and  B  were  part- 
ners, and  indebted  to  C;  A  sold  his  interest  in  the  partnership  to 
B,  who  covenanted  to  pay  all  the  partnershijD  debts,  and  this 
w^s  known  to  C.  Afterwards  B  made  an  arrangement  under  the 
bankruptcy  acts  with  his  creditors,  including  0,  by  which  C 
agreed  to  take  a  less  amount  for  the  partnership  debt,  and  to  ex- 
tend the  time.  Held,  A  occupied  the  position  of  a  surety,  and 
was  discharged  both  by  the  giving  of  time  and  by  the  novation 

^  Jenness  I'.  Cutler,  12  Kansas,  50O.  retiring  member  was  not  dischargecl ; 

2  Thurber  V.  Corbin,  51  Barb.  (N.Y.)  Varnam  v.    Harris,  1    Hun.   (N.Y.), 

215;  Colgrove  V.  Tallman,  2  Lansing,  451. 

(N.  Y.)  97.  But  where  under  sucli  cir-  ^  This  was  decided  by  the  House  of 

cumstances  the  creditor  took  from  the  Lords,    in    Oakeley  v.   Pasheller,   10 

remaining  member  his  note  for.  the  Bhgli,  (N.  S.)  548.     To  same  effect, 

firm  debt,  upon  the  agreement  that  if  see  Smith  v.  Shelden,  35  Mich.  42.  See 

paid  it  should  cancel  the  debt,  but  if  also,   Colgrove  v.   Tallman,    67  New 

not  he  should  hold  the  firm  for  it,  and  York,  95. 

the  note  was  not  paid,  it  was  held  the  ■*  Wilde  v.  Jenkins,  4  Paige,  481. 


VENDOR   OF    LAND,    SURETY.  31 

of  the  debt.^  Where  a  member  of  a  firm  transferred  his  interest 
therein  to  a  third  person,  wlio  was  received  into  the  firm,  and  as- 
sumed all  the  liabilities  of  the  retiring  member,  it  was  held  that 
such  retiring  member  occupied  the  position  of  a  surety  for  the  firm 
debts  to  the  extent  that  the  assets  of  the  firm  were  sufificient  for 
their  payment.*  A  and  B  were  partners,  and  dissolved  their 
partnership,  B  taking  the  business,  and  agreeing  to  pay  the  firm 
debts.  Afterwards,  judgment  for  a  firm  debt  was  recovered  against 
A  and  B,  which  A  was  obliged  to  pay,  and  by  agreement  with  the 
creditor,  A  sued  out  execution  on  the  judgment  against  the  land 
of  B.  Held,  that  as  between  themselves,  A  was  the  surety  of  B, 
and  had  a  rijyht  to  make  the  ao^reement  with  the  creditor,  and 
could  hold  the  land  against  subsequent  creditors  of  B,^  Three 
persons  were  in  partnership  in  mercantile  business.  Two  sold 
out  to  the  third,  who  agreed  to  pay  the  partnership  debts.  The 
partner  thus  assuming  the  firm  debts,  remained  in  possession  of 
the  former  property  of  the  firm,  and  was  from  time  to  time,  for 
eight  months,  selling  out  the  goods,  when  the  firm  debts  having 
become  due,  and  not  being  paid,  one  of  the  retiring  partners  was 
sued  for  such  firm  debts,  and  thereupon  filed  a  bill  to  compel  the 
partner  who  assumed  the  debts  to  pay  them  from  the  property  which 
had  belonged  to  the  partnership.  Held,  he  occupied  the  position 
of  a  surety,  and  was  entitled  to  the  relief ;  a  surety  having  aright 
to  come  into  equity  to  compel  the  principal  to  pay  the  debt.* 

§  24.  Vendor  of  land  who  sells  it  subject  to  mortgage,  is 
surety  for  mortgage  debt. — If  a  party  owning  land,  encumbered 
by  mortgage  to  secure  his  debt,  sells  it,  and  the  vendee,  as  part  of 
the  purchase  price,  agrees  to  pay  the  mortgage  debt,  the  vendor, 
as  between  themselves  at  least,  becomes  the  surety  of  the  vendee 
for  the  mortgage  debt,  and  the  vendee  becomes  the  principal,  and 
the  vendor  will,  as  to  such  debt,  be  entitled  to  the  same  rights 
and  remedies  against  the  vendee  that  any  surety  has  against  his 
principal.^  Whether  the  vendor  in  such  case  would  be  entitled 
to  all  the  rights  of  a  surety  as  against  the  creditor,  who  had 
knowledge  of  the  facts,  is  not  quite  so  clear  upon  authority.     A 

1  Wilson  V.  Lloyd,  Law  Rep.  16  Eq.  *  West  v.  Chasten,  12  Fla.  315. 

Cas.  60.  ^  Mills  r.  Watson,  1  Sweeny,  (jST.Y.) 

"^  Morss  V.  Gleason,  64  New  York,  374;  Cornell  v.  Prescott,  2  Barb.    (N. 

204.  Y.)  16;  Marsh  v.  Pike,    1   Sandford's 

^Waddington    v.   Vredenbergh,    2  Ch.  R.  210. 
Jolins.  Ca?.  227. 


32  THE    CONTKACT. 

and  B  purchased  land  jointly,  and  gave  back  a  joint  bond  and 
morto-ao-c  for  the  purchase  money:  A  afterwards  conveyed  his 
lialf  interest  to  B,  and  B  agreed  to  pay  the  mortgage  and  gave  A  a 
bond  of  indemnity  against  the  mortgage:  Held,  A  occupied  the 
position  of  a  surety  and  was  entitled  to  the  same  rights  of  subro- 
o-ation  to  which  any  surety  would  have  been  entitled,  notwith- 
standino-  the  bond  of  indemnity.'  Under  a  similar  state  of  facts 
of  which  the  creditor  had  notice,  (except  that  no  bond  of  indem- 
nity was  given  the  vendor,)  it  was  held  that  the  vendor  was  not 
discharged  because  the  creditor  released  the  mortgage  on  a  por- 
tion of  the  land.  This  was  placed  upon  the  ground  that  while 
as  between  themselves,  the  vendor  was  the  surety  of  the  vendee, 
yet  the  vendor  did  not  occupy  that  relation  as  to  the  creditor, 
and  was  not  entitled  to  the  rights  of  a  surety  as  against  the  cred- 
itor, unless  the  creditor,  for  a  valuable  consideration,  agreed  to 
accept  him  as  a  surety.^  Where  the  owner  of  land  incumbered 
by  mortgage  executed  by  him,  sold  it  subject,  to  the  incum- 
brance, it  was  held  that  in  equity  the  land  became  the  primary 
fund  for  the  payment  of  the  debt,  that  the  vendor  occupied  the 
position  of  a  surety,  and  upon  payment  of  the  mortgage  debt  was 
entitled  to  be  subrogated  to  the  rights  of  the  creditor  the  same  as 
any  other  surety.^  Under  a  similar  state  of  facts  it  was  held  that 
the  vendor  was  a  surety,  and  was  discharged  by  time  given  the 
vendee  by  the  creditor,  even  though  it  was  expressly  agreed  be- 
tween the  vendee  and  creditor  that  the  luortgage  and  the  debt 
should  remain  in  all  other  respects  unaiFected  by  the  giving  of 
time.*  As  the  rights  of  the  surety  against  the  creditor  do  not 
depend  upon  contract  between  them,  but  are  founded  upon 
equitable  principles;  and  as  it  is  settled  that  if  the  creditor  does 

'  Cherry  v.  Monro,  2  Barb  Ch.  E.  222.  In  Penfield  v.  Goodrich,  10 
618.  The  same  principle  was  held  in  Hun.  (N.  Y.)  41,  and  Meyer  v.  Lath- 
succession  ofDaigle,  15  La.  An.  594.  rop,  10  Hun.  (N.  Y.)  66,  it  was  held 

*  James  v.  Day,  37  Iowa,  164.  The  that  the  vendor  of  land  which  Ue  con- 
same  principle  was  held  in  Marsh  v.  veyed  subject  to  a  mortgage,  was  not 
Pike,  1  Sandford's  Ch.  R.  210,  and  discharged  by  the  creditor  giving  time 
the  court,  on  a  bill  filed  by  the  vendor,  to  the  vendee  for  payment  of  the 
refused  to  compel  the  creditor  to  col-  mortgage  debt.  But  it  was  admitted 
lect  the  money  from  the  mortgaged  that  the  land  was  the  primary  fund 
premises,  but  granted  relief  against  for  the  payment  of  the  debt,  and  that 
the  vendee  as  a  principal.  as  between  themselves  the  vendor  was 

=•  Johnson  v.  Zink,  51  New  York,  333.  the  surety  of  the  vendee. 

*Calvo  r.  Davies,  8  Hun.  (N.Y.) 


JOINT    OBLIGORS   AS    SURETIES.  33 

not  know  of  the  suretyship  when  he  takes  the  obligation  of  the 
surety,  but  is  informed  of  it  afterwards,  the  rights  of  the  surety 
then  arise;  these  principles  seem  to  apply  with  full  force  to  the 
point  under  consideration,  and  it  seems  clear  on  principle,  that 
the  vendor  in  such  cases  as  the  foregoing,  is  entitled  as  against 
the  creditor,  to  all  the  rights  of  any  surety. 

§  25.  Joint  obligors  are  sureties  for  each  other — When  sole 
maker  of  note  or  bond  is  surety,  etc. — Where  several  persons 
purchase  land,  it  being  understood  between  them  that  each  shall 
have  an  equal  share  of  it,  and  they  all  join  in  a  bond  for  the  pur- 
chase money,  they  are  sureties  for  each  other;  and  if  one  fails  to 
pay  any  portion  of  his  share,  and  the  others  pay  it,  the  one  fail- 
ing to  pay  will  have  no  interest  in  the  land,  which  he  or  his  cred- 
itors can  reach,  till  his  share  is  paid  up.^  In  a  similar  case,  where 
one  of  two  joint  purchasers  paid  more  than  his  share,  it  was  held 
that  he  was  surety  for  the  excess,  and  entitled  to  set  up  the  bond 
as  a  specialty  debt  against  the  estate  of  his  co-purchaser.^  Each 
principal  obligor  in  a  joint  bond  is,  as  between  them,  a  surety  for 
his  co-obligor.^  Where  two  administrators  and  two  sureties  exe- 
cuted a  joint  and  several  administration  bond,  it  was  held  that 
each  of  the  administrators  was  surety  for  the  other,  and  if  one 
committed  a  devastavit,  the  other  was  chargeahle  pa7^i passu  with 
the  other  sureties,  but  was  not  liable  as  principal."  When  a  prom- 
issory note  is  executed  by  two  persons,  the  consideration  going 
one-half  to  each  of  them,  as  between  themselves,  they  are  each 
principal  for  one-half  the  debt,  and  surety  of  the  other  for  the 
other  half.^  The  sole  maker  of  a  promissory  note  is  sometimes 
entitled  to  stand  in  the  position  of  a  surety.  Thus  AV,  wlio  was 
absent,  wrote  to  !N,  requesting  him  to  borrow  of  M  a  sum  of 
mon^y  to  pay  a  debt  of  W,  promising  in  the  letter  to  repay  the 
money  on  his  return.  This  letter  was  shown  to  M,  and  the  money 
was  obtained,  for  which  IST.  gave  his  individual  note.  W,  on  his 
return,  went  to  M  with  the  money,  and  offered  to  -pay  N's  note 

^  Deitzler    v.    Mishler,   37    Pa.    St.  *  Morrow's  Admr.  v.  Peyton's  Admr. 

82.  8  Leigh,  (Va.)  54. 

« Stokes  V.  Hodges,  11  Rich.  Eq.  (So.  *  Hall  v.  Hall,  34  Ind.  314;  holding 

Car.)  135;  to  the  same  effect  see  Crafts  that  a  court  of  equity  will  look  at  all 

V.  Mott,  4  New  York,  604.  the  circumstances  of  a  case  to  deter- 

*  Hatch  V.  Norris,  36  Me.  419;  for  mine  whether  or  not  a  party  is  a  sure- 
special  case  on  same  subject  see  Coxw.  ty;  see  Ejtc  v.  Hollier,  Lloyd  &  Goold, 
Thomas'  Admx.  9  Gratt,  (Va.)  312.  (Temp.  Plunket)  250. 
3 


34  THE    CONTEACT. 

but  IsL  permitted  W  to  retain  the  money,  and  agreed  to  wait  for 
it:  Held,  N  was  a  surety,  and  was  discharged.^  A  agreed  to 
take  B's  notes  for  a  certain  debt  about  to  be  created,  and  also  cer- 
tain raih-oad  shares  as  collateral  security  for  the  notes,  provided 
B  would  furnish  him  the  bond  of  responsible  parties  conditioned 
that  they  would  take  the  shares  and  notes  at  the  end  of  two  years 
and  pay  what  should  remain  due  on  the  notes.  Held,  that  al- 
though such  j)artics  did  not  sign  the  notes,  they  were  in  fact  sureties 
of  B,  and  not  original  promisors,  and  that  they  were  entitled  to  all 
the  rights  of  sureties.*  If  a  purchaser  of  goods,  subsequent  to 
the  sale,  gives  a  portion  of  them  to  A,  and  A  unites  with  the  pur- 
chaser in  a  joint  note  for  the  purchase  money,  with  the  under- 
standing that  A  signs  as  surety  only,  the  fact  that  A  received  a 
part  of  the  goods  from  the  purchaser  as  a  gift,  does  not  make  him 
a  princij^al  in  the  note." 

§  26.  Stockholders  of  a  corporation,  liable  for  its  debts,  are  not 
Its  sureties — "When  surety  becomes  principal,  etc. — Where  the 
charter  of  a  corporation  made  the  stockholders  "jointly  and  sev- 
erally, personally  liable  for  the  payment  of  all  debts  or  demands 
contracted  by  the  said  corporation,"  it  was  held  the  stockholders 
were  principal  debtors  in  their  individual,  as  well  as  their  cor- 
porate capacity,  and  were  not  sureties  of  the  corporation,  nor  dis- 
charged by  time  given  to  it.^  AYhen  two  parties,  for  mutual 
accommodation,  loan  their  notes  to  each  other,  neither  thereby  be- 
comes a  surety  for  the  other.  A  loaned  two  of  his  individual 
notes  to  B,  which  B  discounted,  and  A  had  to  pay.  At  the  same 
time  as  the  former  loan,  B  loaned  two  of  his  individual  notes  for 
the  same  amount,  and  due  at  the  same  time^  to  A.  After  paying 
the  notes,  A  claimed  certain  rights  of  subrogation  as  the  surety 
of  B  in  the  two  notes  which  he  had  paid:  Held,  he  was  not  a 
surety,  and  was  not  entitled  to  the  subrogation.^  A  surety  may, 
by  subsequent  dealings  between  himself  and  the  creditor,  become 
a  principal.  A  surety  on  a  note  given  for  the  price  of  a  negro, 
gave  his  own  note  for  a  balance  remaining  due  on  the  original 
note,  in  discharge  of  such  balance:  Held,  that  by  this  transaction 
the  surety  ceased  to  be  the  surety  of  his  principal,  and  became  his 

*  McQuesten  r.  Noyes,  6  New  Hamp.  *Harger  v.  McCullough,  2  Denio, 
19-                                                              119.    To  same  eiFect,  see  Moss  v.  Mc- 

»  Watriss  V.  Pierce,  32  New  Hamp.      Cullough,  7  Barb.  (N.  Y.)  279. 
560.  6  Stickney  v.  Mohler,  19  Md.  490. 

•  Fraser  v.  McConnell,  23  Ga.  868. 


SURETY   AFTER   JUDGMENT. 


creditor,  and  that  he  could  not  make  the  defense  to  the  last  note 
that  the  negro  was  unsound,  and  the  consideration  of  the  first  note 
had  failed.^  Judgment  having  been  obtained  against  a  surety, 
he  entered  into  a  new  arrangement  Math  the  creditor,  irrespective 
of  the  principal,  by  which  execution  was  not  to  issue  while  he 
kept  up  certain  policies  on  his  life  for  securing  the  debt,  and  the 
creditor  was  to  take  a  less  amount  than  the  judgment.  It  was 
held  that  by  this  arrangement  the  surety  became  a  principal,  and 
was  no  longer  entitled  to  any  of  the  rights  of  a  surety.^ 

§  27.  Surety  entitled  to  same  rights  after  judgment  against 
him  as  before. — The  relation  of  principal  and  surety  continues 
after  judgment  against  the  surety,  and  a  surety  is,  both  at  law 
and  in  equity,  entitled  to  the  same  rights,  and  will  be  discharged 
by  the  same  act  of  the  creditor  after,  as  before,  judgment.^  It  has 
in  a  few  cases  been  held  that  the  character  of  the  surety  as 
such  became  merged  in  the  judgment,  and  that  thenceforth 
he  became  a  principal  and  was  not  entitled  to  the  rights 
of  a  surety.*    There    is,    however,   very    little    conflict  of  au- 


'  Fluker  v.  Henry's  Adm'r,  27  Ala. 
403. 

''Reade  v.  Lowndes,  23  Beavan,  361. 
To  the  effect  that  a  surety  does  not 
become  a  principal  by  joining'  in  a 
new  obligation  after  his  liability  is 
fixed,  see  Merriken  v.  Godwin,  2  Del- 
aware Ch.  E.  236. 

^  Commercial  Bank  v-  Western  Re- 
serve Bank,  11  Ohio,  444;  Brown 
Ayer,  24  Ga.  2S8;  Commonwealth  t\ 
Miller's  Admrs.  8  Serg-.  and  Rawle,  452 
Moss  V.  Pettengill,  3  Minn.  217 
Chambers  v.  Cochran,  18  Iowa,  159 
Rice  V.  Morton,  19  Mo.  263;  Bangs  v 
Strong,  7  Hill,  (N.  Y.)  250;  Smith  v. 
Rice,  27  Mo.  505;  Davis  v.  Mikell,  1 
Freeman's  Ch.  R.  (Miss.)  548;  Newell 
V.  Hamer,  4  How.  (Miss.)  684;  Curan 
V.  Colbert,  3  Kelly,  (Ga.)  239;  Brown 
V.  Exrs.  of  Riggins,  3  Kelly,  (Ga.)405; 
Delaplaine  v.  Hitchcock  4  Edward's 
Ch.  321;  Allison  v.  Thomas,  29  La. 
An.  732. 

*  McNutt  V.  Wilcox,  1  Freeman's  Ch. 
R.  (Miss.)  116.  In  Bay  v.  Tallraadge, 
5  John's  Ch.  305,  Chancellor  Kent  held 


that  after  judgment  against  bail  in  a 
civil  case,  the  relation  of  principal 
and  surety  ceased,  and  the  bail  was 
not  dischai-ged  by  time  given.  The 
same  principle  was  held  in  LaFarge  r. 
Herter,  3  Denio,  157,  but  the  decided 
weight  of  New  York  authority  is  the 
other  way.  In  Findlay's  Exrs.  v. 
United  States,  2  McLean,  44,  it  was 
held  that  judgm'mt  against  the  ac- 
commodation drawer  of  a  bill  of  ex- 
change merged  the  relation  of  prin- 
cipal and  surety,  and  that  thereafter 
the  only  right  of  the  surety  was  to  pay 
and  have  subrogation.  In  Marshall 
V.  Aiken,  25  Vt.  328;  McDowell  v. 
Bank,  1  Harrington,  (Del.)  369,  and 
Dunham  r.  Downer,  31  Vt.  249,  it  was 
held  that  the  judgment  merged  the 
relation  of  principal  and  surety,  so 
that  at  law  the  surety  no  longer  had 
any  rights  as  such,  but  that  in  equity 
all  his  rights  remained.  In  Jenk- 
ins V.  Robertson,  2  Drewry,  351, 
A  as  principal  and  B  as  surety,  were 
indebted  to  C.  B  died,  and  C,  in  a 
creditor's     suit    obtained    a    decree 


36  THE    CONTKACT. 

tlioritj  on  this  subject.  There  is  no  good  reason  why  a  surety 
should  not  be  entitled  to  the  same  rights  after,  as  before,  judg- 
ment. "  Tlie  recovery  of  a  judgment  against  the  surety  does  not 
niei-ge  or  destroy  his  character  as  such,  or  the  relation  which  ho 
sustains  to  his  principal.  Its  only  effect  is  to  change  the  form  of 
the  security  as  between  him  and  the  debtor.  Merging  the  con- 
tract between  the  creditor  and  the  principal  debtor  or  surety, 
cannot  affect  the  relation  between  the  princij^al  and  surety.  This 
relation  is  not  necessarily  created  by  the  contract  to  which  the 
creditor  is  a  party,  but  may  be  created  even  without  his  knowl- 
edge." ^  "  The  judgment  is  technically  a  security  of  a  higher 
nature,  but  it  is  a  security  for  the  same  debt  or  duty  as  the 
contract  on  which  it  is  founded."^  "To  give  time,  or  to  dis- 
charge the  principal  after  judgment,  would  be  as  injurious  to  the 
surety  as  before  judgment.  In  either  case  the  injury  is  the  same, 
and  why  not  have  the  same  protection  ?  "^  In  another  case  the  court 
said:  "Ilad  the  facts  now  proved,  occurred  before  this  judgment 
was  rendered,  they  would  have  opposed  a  good  defense  to  the 
recovery  of  it;  and  if  not  availed  of  in  defense,  the  judgment 
would  have  concluded  them;  occurring  after  the  judgment,  they 
are  no  more  concluded  by  it  than  payment,  or  a  release,  or  any 
other  matter  going  to  discharge  it."*  After  joint  judgment 
against  principal  and  surety,  the  surety  will  be  discharged  by 
time  given  the  principal,^  by  creditor  releasing  levy  on  property 
of  principal,  and  taking  from  princij)al  bond  and  mortgage  in 
payment  for  the  debt,^  by  creditor  i-eleasing  principal,  who  is 
taken  in  execution,  and  taking  from  him  a  fresh  security  for  the 
debt.^  The  same  rule  prevails  where  separate  judgments  are  re- 
covered against  the  principal  and  surety.^ 

against  his  estate.   Afterwards  C  sued  *  Shelton  v.  Hurd,  7  Rhode  Is.  403, 

A  and  took  judgment,  thereby  giving  per  Ames,  C.  J. 

time:   Held,  the  estate  of  B  was  not  ^Storms  v.  Thorn,  3  Barb.  (N.  Y.) 

discharged.     Its  character  as  surety  .314;  Blazer  v.  Bundy,  15  Ohio  St.  57; 

was  merged  in  the  decree,  andallthat  McCraiy  v.  Coley,  Georgia  Decisions, 

followed  was  simply  an  execution  of  104;  Carpenter  v.  Devon,  6  Ala.  718; 

the  decree.    See,  also,  on  this  subject,  Crawford  v.  Gaulden,  33  Ga.  173. 

Dougherty  f.  Richardson,  20  Ind.  412.  «La  Farge  t?.  Herter,  11  Barb.  (N. 

^  Bangs  V.  Strong,  4  New  York,  315,  Y.)  159. 

per  Pratt,  J.  ^  Eales  v.  Fraser,  6  Man.  &  Gr.  755. 

*  Carpenter  v.  King,  9  Met.  511,  per  « Manufacturers'    and     Mechanics' 

Shaw,  C.  J.  Bank  v.     Bank  of   Pennsylvania,    7 

''Trotter  v.  Strong,  63  111.  272,  per  Watts  &  Serg.  335. 
Walker,  J. 


SURETY    CONTRACTING    AS    PRINCIPAL.  37 

.§  28.  Surety,  who  in  terms  binds  himself  as  principal,  not  en- 
titled to  rights  of  surety. — Where  a  surety  binds  liimself  in 
terms  as  a  principal  in  the  obligation  which  he  signs,  he  will  bo 
held  as  a  principal,  and  will  be  entitled  to  none  of  the  rights  of  a 
surety.  "  There  is  no  rule  of  law  which  prohibits  a  surety  from 
waiving  the  right  which  belongs  to  him  as  such.  Such  a  waiver 
has  nothing  in  itself  offensive  to  the  policy  of  the  law."  The 
express  terms  of  the  obligation,  in  such  case,  excludes  the  idea 
of  suretyship,  and  the  creditor  has  a  right  to  avail  himself  of  the 
contract  his  vigilance  has  obtained.^  Where  three  parties  signed 
a  joint  and  several  note,  the  first  one  adding  to  his  name  the 
word  "  principal,"  the  other  two  adding  the  word  "  sureties,"  it 
was  held  the  one  to  whose  name  the  word  "  principal "  was  attached 
could  not  show  by  parol  that  he  was  in  fact  a  surety,  and  known 
to  be  such  by  the  creditor.  The  court  said  that  if  tiie  note  had 
been  silent  as  to  who  was  principal  and  who  surety,  the  surety- 
ship might  have  been  shown  without  contradicting  the  note,  but 
in  the  present  case,  to  allow  the  proof  would  be  to  contradict 
the  terms  of  the  note.'^  Several  parties  signed  a  note  to  a  bank 
commencing  as  follows:  "We,  severally  and  jointly,  all  as  prin- 
cipals, promise  to  pay,"  and  it  was  held  none  of  them  could  show 
they  were  sureties.*  The  court  said:  "  Here  is  an  express  con- 
tract that  each  signer  is  a  principal.  Each  contracts  for  himself 
with  the  holder  that  he  is  a  principal;  that  he  will  so  stand  upon 
the  note.  This  constitutes  apart  of  the  contract  with  the  bank 
as  much  as  the  sum  to  be  paid  or  the  time  of  payment  or  the 
promise  to  pay  anything  at  any  time  does,  and  this  fact  as 
to  the  capacity  in  which  the  signer  of  the  note  binds  himself, 
may  often  be  as  important  a  part  of  the  contract  as  any  other." 
A  principal  and  several  sureties  signed  a  bond,  reciting  that  they 
all  signed  "  as  principals,"  and  nothing  appeared  on  the  face  of  the 
bond  to  indicate  that  any  of  them  were  sureties:  Held,  the  sure- 
ties were  estopped  by  the  bond  to  show  they  were  sureties,  and 
that  they  were  not  discharged  by  time  given. ^     Where  a  note 

'Picot  V.  Signiago,  22  Mo.  587;  Mc-  surety  there,  but  it  was  denied  liim, 

Millan  v.  Parkell,  64  Mo.  286.  and  the  court  held  that  both  at  law 

^  Waterville  Bank  ik  Redington  52  and  in  equity,  he  was  concluded  hj  the 

Me.  466.  terms  of  his  obligation.   Heath  v.  Der- 

*  Derry  Bank  v.  Baldwin,   41   New  ry  Bank,  44  New  Hamp.  174. 
Hamp.  4-34.     This  decision  was  made  *  Sprigg  i\  Bank  of  Mount  Pleasant, 

at  law,  and  one  of  the  parties  filed  a  10  Peters,  (U,  S.)  257, 
bill  in  equity,   claiming   relief  as  a 


38  TUE    CONTRACT. 

commenced,  "^e  eacli  as  principal,  jointly  and  severally  prom- 
ise to  pay,"  but  one  of  the  signers  was  a  surety,  and  known  to 
tlie  creditor  to  be  such,  and  time  was  given  to  the  principal,  which 
would  ordinarily  have  discharged  a  surety,  it  was  held  the  surety 
was  not  discharged.^  But  where,  in  such  a  case,  the  surety  added 
to  his  signature  the  word  "  surety,"  it  was  held  that  he  had  all 
the 'rights  of  a  surety,  and  was  discharged  by  time  given.'  A 
surety  may  also  be  estopped  by  his  conduct  from  claiming  the 
rights  of  a  surety.  A  appeared  on  a  note  as  principal,  and  B  as 
surety,  and  in  various  litigations  concerning  it  for  eight  years, 
A  professed  to  be  the  principal.  In  the  mean  time  judgments 
had  been  recovered  against  B,  bv  certain  of  his  creditors.  In  a 
contest  between  A  and  such  creditors,  it  M'as  held  that  A  could 
not  show,  to  the  prejudice  of  the  creditors,  that  he  was,  in  fact, 
surety  and  B  principal  on  such  note.^ 

§  29.  Surety  estopped  to  deny  recitals  of  his  obligation. — 
The  general  rule  is  that  sureties  are  estopped  to  deny  the  facts 
recited  in  the  obligations  signed  by  them,  and  this,  whether  the 
recitals  are  true  or  false  in  fact.  Having  once  solemnly  alleged 
the  existence  of  the  facts,  they  cannot  afterwards  be  heard  to 
deny  it.^  The  plaintiif  in  a  replevin  suit,  as  a  condition  for  a 
continuance  granted  him,  was  required  to  give  an  additional  bond, 
and  in  pursuance  of  such  requirement,  A,  long  after  it  had  been 
taken  in  the  case,  signed  the  original  replevin  bond  to  the  sheriff, 
which  had  been  signed  by  other  sureties.  In  a  suit  against  A  on 
the  bond,  he  set  up  the  defense  that  the  sheriff  had  no  right  to 
take  a  replevin  bond  in  the  suit  at  the  time  he.  A,  signed  it,  and 
that  the  bond  was  void.  The  bond  on  its  face  imported  that  it 
was  executed  when  the  suit  was  instituted,  and  when  the  sheriff 
had  a  right  to  take  it,  and  it  was  held  that  the  surety  was  estopped 
to  deny  that  it  was  taken  at  tliat  time.^  In  an  action  against  the 
sureties  in  an  undertaking  purporting  to  have  been  given  to  pro- 
cure the  discharge  of  an  attachment,  they  will  not  be  allowed  to 

'  Claremont  Bank  v.  Wood,  10  Tt.  son,  14  Martin,  (La.)  2  N.  S.  672;  Cor- 

582.  die  V.  Burcli,  10  Gratt.  (Va.)  480;  Bor- 

*  People's  Bank  v.  Pearsons,  30  Vt,  den  v.  Houston,  2  Tex.  594;  Cecil  v. 
''II-  Early,   10  Gratt.   (Va.)   198;    Cox  v. 

='GoswiUer's  Estate,  3  Penn.  &  Thomas'  Admx.,  9  Gratt.  (Ya.)  312; 
Watts,  200.  Lee  r.  Clark,  1  Hill,  (N.Y.)  56;  State  v. 

*  Monteith    v.    Commonwealth,    15       Lewis,  73  Xor.  Car.  138. 

Gratt.  (Va.)  172  ;   Duhamp  v.  Nichol-         ^  Decker  v.  Judson,  16  New  York,  439. 


ESTOPPEL    BY   RECITALS.  39 

show  as  a  defense  that  no  attachment  was  in  fact  issued.  It  is 
not  essential  to  the  validity  of  such  an  undertaking  that  an  attach- 
ment shall  actually  be  issued.  Giving  an  undertaking  which  re- 
cites the  issuance  of  an  attachment  when  none  has  been  issued,  is 
conclusive  evidence  of  a  waiver  of  the  issuance  of  the  attachment.^ 
The  surety  on  a  receiver's  recognizance,  which  recites  that  it  lias 
been  duly  acknowledged  before  a  commissioner  of  the  court,  is 
estopped  to  deny  that  lact.^  When  the  bond  of  a  city  treasurer 
recited  the  fact  that  he  had  been  elected  to  that  office,  and  the 
sureties  on  the  bond  were  sued  for  money  received  by  him  while 
acting  in  that  capacity,  it  was  held  that  they  could  not  deny  that 
he  had  been  elected.  The  court  said,  that  by  signing  the  bond 
they  had  enabled  him  to  get  the  money  of  the  city,  and  it  was  too 
late  for  tliem  to  deny  his  election.^  When  the  bond  of  a  borougli 
collector  recited  that  he  was  duly  elected,  it  was  held  that  the  sure- 
ties therein  could  not  show  that  the  office  had  been  abolished  be- 
fore his  election.^  "Where  the  condition  of  a  bond  recited  that  A 
was  guardian,  etc.,  it  was  held  that  neither  A  nor  the  sureties  on 
his  bond  could  deny  that  he  was  guardian,  nor  set  up  as  a  de- 
fense any  supposed  irregularity  in  obtaining  the  appointment.^ 
§  30.  Surety  estopped  to  deny  recitals  of  his  obligation. — In 
an  action  against  C  as  surety  for  S,  in  a  replevin  bond  conditioned 
for  the  re-delivery  of  property  attached  to  abide  the  final  order 
of  the  court,  he  pleaded  that  at  the  time  of,  and  prior  to  the  insti- 
tution of  the  original  suit  by  attachment,  S,  the  defendant  therein, 
and  the  principal  in  the  replevih  bond,  was  dead.  It  was  held, 
that  by  signing  the  bond  which  purported  to  be  signed  by  S  as  a 
co-obligor,  C  was  estopped  to  deny  that  S  had  signed  it.^  The 
official  bond  of  an  executor  was  made  payable  to  four  justices, 
one  of  whom  was  not  a  member  of  the  court  at  the  time:  Held, 
that  tlie  surety,  having  executed  the  bond,  was  estopjjed  to  deny 
that  any  of  those  named  in  the  bond  as  justices  were  such.''  So 
where  the  bond  of  a  guardian  recites  that  the  principal  has 
been  appointed  guardian,  the  sureties  therein  are  estoj^ped  to 

'  Coleman  v.  Bean,  1  Abbott's  Rep.  *  Seiple  v.  Borough  of  Elizabeth,  3 

Omitted  Cas.  (N.Y.)  394.  Duteher,  (N.  J.)  407. 

2  Driscoll  V.  Blake,  9  Irish  Ch.  R.  '  Fridge  v.  The  State,  3  Gill  &  Johns. 
356.  (Md.)  103. 

3  City  of  Paducah  v.  Cully,  9  Bush,  ^  Collins  r.  Mitchell,  5  Fla.  364. 
(Ky.)323;  to  same  effect,  see  People  'Franklin's  Admr.  v.  Depriest,   13 
V.  Jenkins,  17  Cal.  500  Gratt,  (Ya.)  257. 


40  THE    CONTRACT. 

denv  the  jurisdiction  of  the  court  making  the  appointment.^  The 
sureties  on  the  bond  of  an  Indian  agent,  which  recites  his  ap- 
pointment as  such,  are  estopped  to  deny  that  fact.*  The  bond 
"•iven  by  a  coroner  upon  assuming  the  duties  of  sheriff,  recited 
that  the  sheriff  was  dead,  and  that  thereby  the  coroner  had  be- 
come sheriff,  and  it  was  held  that  the  sureties  on  the  bond  were 
estopped  to  deny  those  facts.^  A  guaranty  purported  to  have 
been  made  in  consideration  of  one  dollar,  but  the  actual  consid- 
eration was  that  moving  between  principal  and  creditor.  The 
guarantor  attempted  to  j^rove  that  the  one  dollar  had  not  been 
paid:  Held,  the  parties  in  such  a  case  are  taken  to  have  agreed 
that  the  actual  consideration  shall  be  estimated  in  money,  at  the 
sum  expressed  as  a  consideration  in  the  contract,  and  where  the 
parties  have  agreed  that  a  le.2:al  consideration  shall  assume  such 
a  form,  for  the  purposes  of  the  contract,  they  are  estop]3ed  from 
denying,  in  an  action  on  the  contract,  that  it  was  such  in  fact.* 
But  where  a  contract  for  the  delivery  of  sheep  recited  that  $1,000 
had  been  paid  by  the  purchaser,  and  it  was  signed  by  the  seller 
and  certain  sureties  for  him,  in  a  suit  on  the  contract  it  was  held 
tliat  the  fact  of  the  payment  of  the  money  might  be  contradicted. 
The  court  said:  "  "We  are  of  opinion,  as  it  was  stated  to  be  a  part 
of  the  consideration  for  the  execution  of  said  writing,  that  the 
writing  is  not  conclusive  upon  the  subject.  The  truth  may  be 
inquired  into."^ 

§  31.  Surety  estopped  to  deny  recitals  of  his  obligation — 
Reason  why — When  not  estopped. — The  holder  of  the  bond  of  a 
corporation  guarantied  it  as  follows:  "I  hereby  guaranty  the 
due  payment  of  the  money  secured  thereby."  In  a  suit  against 
him  on  the  guaranty,  the  guarantor  offered  to  show  that  the  bond 
was  invalid,  and  the  corporation  had  no  authority  to  make  it;  but 
it  was  held  that  he  was  estopped  to  show  those  tacts.  The  court 
said:  "The  guaranty  of  the  payment  of  the  bond  by  the  defend- 
ant imports  an  agreement  or  undertaking  that  the  makers  of  the 
bond  were  competent  to  contract  in  the  manner  they  have,  and 
that  tlie  instrument  is  a  binding  obligation  upon  the  makers."  ® 
In  an  action  of  covenant  on  a  sealed  guaranty  of  a  lease,  it  was 

» Norton  v.  Miller,  25  Ark.  108.  *  Reclfield  v.  Haight,  27  Conn.  31. 

"Bruce  v.  United  States,  17  How.  ^Swopet'.  Forney,  17  Tnd.  385. 

(U.  S.)  437.  ^Remsen  f.  Graves,  41   New  York, 

» Allbee  V.  The  People,  22  111.  533.  471,  per  Mason,  J. 


ESTOPPEL    BY   EECITALS.  41 

objected  that  tliere  was  no  proof  that  one  of  the  lessors  execnted 
the  lease,  but  it  was  held  that  the  guarantors  were  estopped  from 
denying  the  execution  of  the  lease  bj  the  lessees.  The  court 
said:  '"  Entering  into  this  guaranty  was  an  acknowledgment  by 
the  guarantors  that  the  lease  was  duly  executed  by  both  lessees."* 
In  the  cases  already  referred  to  on  this  subject,  the  question  came 
u]3  in  a  suit  against  the  surety,  on  the  obligation  signed  by  him. 
The  facts  recited  were,  in  most  instances,  within  the  knowledge 
of  the  surety,  and  the  principal  had  usually  acted  in  the  capacity 
which  the  obligation  recited  he  occupied,  and  derived  a  benefit 
therefrom,  and  become  a  defaulter  therein.  lu  such  cases  the 
issue  is  not  the  right  of  the  principal  to  fill  the  position,  but  his 
right  to  retain  money  received  by  him  while  filling  the  same,  and 
which  belongs  to  others.  To  such  cases  the  principles  of  equita- 
ble estoppel,  as  well  as  the  rule  that  a  man  cannot  aver  against 
his  own  deed,  apply.  "When  the  issue  is  as  to  the  right  of  the 
principal  to  fill  the  position,  difierent  principles  will  apply.  A 
person  was  appointed  to  fill  an  ofiice  created  by  a  city,  and  gave 
an  official  bond  with  sureties,  which  recited  that  he  had  been  ap- 
pointed collector  of  assessments  for  street  improvements,  and  was 
conditioned  that  he  should  pay  the  city  treasurer  all  moneys 
which  he  might  receive  as  such  collector.  The  city  ]iad,  in  fact, 
no  authority  to  create  the  ofiice,  but  the  court  held  the  sureties 
were  estopped  to  deny  that  the  collector  was  an  officer  de  facto? 
The  distinction  above  referred  to  was  noticed  by  the  court  as 
follows:  "The  action  is  not  to  enforce  upon  him  the  execution 
of  the  duties  of  his  office,  or  to  recover  damages  for  his  failure  to 
perform  them.  In  such  a  case  both  he  and  his  sureties  might 
answer  and  say,  perhaps  successfully,  there  was  no  such  ofiice, 
and  he  was  without  legal  power.  But  here  the  suit  is  founded 
upon  an  actual,  complete  execution  of  the  duties  of  the  ofiice  he 
claims  to  fill.  He  is  functus  officio,  as  collector  of  taxes.  The 
money  he  has  is  the  money  of  the  city,  which  he  has  no  right  to 
retain,  and  which  his  sureties  on  the  whole  case,  just  as  it  is, 
have  stipulated  that  he  shall  pay  over  to  the  city  treasury." 

§  32.  When  surety  not  estopped  by  recitals  of  obligation 
signed  by  him. — A  surety  is  not  in  all  cases  estopped  to  deny 
the  facts  recited  in  the  obligation  signed  by  him.     Thus,  where 

^  Otto  V.  Jackson,  35  111.  349.  ^  Hoboken  v.  Harrison,  1  Vroom.  (N. 

J.)  73. 


42  THE   CONTKACT. 

the  bond  of  a  township  recited  tliat  the  township  officers  execut- 
ing the  same,  had  been  authorized,  as  the  Law  required,  to  issue 
such  bond,  in  a  suit  on  the  bond  it  was  held  the  township  might 
show  that  no  such  authority  had  been  given.  The  court  said  that 
the  doctrine  that  a  party  is  estopped  from  contradicting  the  re- 
citals of  his  own  deed,  is  applicable  only  where  the  deed  is  admit- 
ted to  be  the  act  of  such  party.^  A  court  had  appointed  a 
guardian  for  a  minor,  and  while  such  appointment  was  unre- 
voked, appointed  another  who  gave  a  bond  with  surety,  reciting 
that  he  had  been  appointed  guardian.  In  a  suit  on  tliis  bond 
against  the  surety,  it  was  held  that  the  appointment  of  the  last 
guardian  was  absolutely  void,  and  that  the  surety  might  show 
the  fact."  The  court  said:  "It  is  certainly  true  that  where  a 
party  makes  a  distinct  and  clear  recital  of  any  fact  in  a  deed 
or  other  valid  obligation,  he  will  be  estopped  from  denying  the  truth 
of  such  recital.  But  this  doctrine  pre-supposes  a  valid  legal  ob- 
ligation, and  we  do  not  know  any  authority,  and  reason  is  cer- 
tainly against  the  proposition,  that  a  party  is  estopped,  by  any  re- 
cital contained  in  an  instrument,  from  showing  that  the  instru- 
ment containing  it  is  absolutely  null  and  void."  An  appeal  bond 
was  conditioned  for  the  prosecution  of  an  appeal  from  the  judg- 
ment of  a  justice  of  the  peace  to  the  Anne  Arundel  County- 
Court.  There  was,  in  fact,  no  such  court.  Held,  the  sure- 
ties were  not  estopped  to  deny  the  existence  of  the  court  by 
the  recital  in  the  bond.^  The  court  said:  "  Whether  a  court 
exists  or  not,  is  something  more  than  a  mere  question  of 
fact,  as  to  which  parties  may  agree  or  be  concluded  by  admis- 
sions. It  must  depend  on  the  constitution  or  laws,  and  when 
the  court  can  see  that  the  supposed  tribunal  is  not  known  to 
these  it  must  so  decide,  no  matter  what  the  parties  may  have 
admitted  by  estoppel  or  agreement."  A  defendant  was  taken 
under  a  bail  writ,  and  the  sheriff  by  mistake  took  a  bond 
for  the  prison  bounds,  which  recited  the  defendant's  imprison- 
ment to  have  been  under  a  ca.  sa.  Held,  the  bond  was 
void,  and  that  the  surety  was  not  estopped  to  show  there  was 
no  ca.  sa.     The  grounds   of  the  decision  are  set  forth  as  fol- 

'  Hudson  r.  Inhabitants  of  Winslow,  ^Tuckerv.  The  State,  11  Md.,  322, 

6  Vroom,  (N.  J.,)  437.  per  Tucker,  J. 

'Thomas  v.  Burrus,  23  Miss.,  550, 
per  Yerger,  J. 


NEGOTIABILITY    OF    GUARANTY.  43 

lows:  "It  is  a  general  rule  of  law,  and  a  correct  one  too,  that 
a  man  cannot  aver  against  bis  own  deed,  but  tbat  is  wbere  be 
has  alleged  some  particular  fact  witbin  bis  own  knowledge  and 
wbicb  forms  a  jDart  of  tbe  consideration  for  bis  undertaking;  and 
tbat  is  tbe  wbole  extent  to  wbicb  tbe  cases  relied  on  go.  But  tbe 
principle  cannot  be  extended  to  an  allegation  coming  from  tbe 
otber  party,  and  wbicb  can  be  necessarily  known  only  to  bim, 
altbougb  contained  in  tbe  recital  of  a  deed  made  by  tbe  defend- 
ant. ■^  Tbe  person  supposed  to  be  estopped  is  tbe  very  person 
imposed  upon.  *  It  is  to  be  observed  tbat  tbis  is  an  allegation 
coming  from  tbe  sberifF  and  not  from  tbe  defendant.  He 
could  not  find  under  wbat  authority  tbe  sberiiF  acted  but  by  bis 
own  representation;  a  person  is  only  estopped  from  denying  bis 
own  acts,  but  not  tbe  acts  of  another."  -^ 

§  33.  Cases  holding  guaranty  of  note  negotiable. — There  is 
an  irreconcilable  conflict  of  authority  as  to  whether  or  not  a 
guaranty  is  negotiable,  and  when,  if  at  all,  it  passes  by  an  as- 
signment of  tbe  original  obligation,  and  there  is  no  decided  pre- 
ponderance of  authority  either  way.  A  stranger  to  a  negotiable 
promissory  note  indorsed  it  in  blank  when  it  was  made.  The 
f)ayee  transferred  the  note,  and  the  holder  wrote  a  guaranty 
above  tbe  stranger's  indorsement  and  brought  suit  upon  it:  Held, 
be  was  entitled  to  recover.^  The  court  said:  " The  guaranty  is 
general,  specifying  no  person  to  whom  the'guarantor  undei-takes 
to  be  liable,  and  is  upon  the  back  of  a  negotiable  instrument.  In 
such  case  the  guaranty  runs  with  tbe  instrument  on  wliicii  it  is 
written  and  to  which  it  refers,  and  partakes  of  its  quality  of 
negotiability,  and  any  person  having  the  legal  interest  in 
tbe  principal  instrument,  takes  in  like  manner  the  inci- 
dent, and  may  sue  upon  tbe  guaranty."  A  guaranty  on  tbe 
back  of  a  negotiable  promissory  note,  signed  by  the  payee, 
was  as  follows:  "I  guaranty  the  payment  of  the  witbin  note." 
Held,  tbe  guaranty  passed  with  the  note,  so  that  any  subse- 
quent lona  fide  boldel',  as  well  as  tbe  first  bolder  after  the 
guaranty  was  made,  might  sue  on  tbe  guaranty.'    These  cases  bold 

' Miller  v.  Bagwell,  3  McCord,  Law  ^  Partridge  v.  Davis,  20  Vt.  499.  To 

(So.  Car.,)  429,  per  Nott,  J.  the  same  effect  see  Killian  v.  Ashley, 

2  Webster  v.  Cobb,  17  111.  459.     See,  24  Ark.  511.    See,  also,  Studabaker  v. 

also,  oil  same   point,  Heaton  v.  Hul-  Cody,  54  Ind.  586. 
bert,  3  Scam.  (111.)  489. 


44  THE    CONTKACT. 

that  where  the  guaranty  is  general,  specifying  no  jDarticular 
person  to  whom  it  runs,  it  is  negotiable  and  passes  with  the  note, 
a-id  may  be  sued  on  at  law,  in  his  own  name,  by  any  subsequent 
holder  of  the  note.  It  has  been  held  that  where  the  guaranty  of 
a  promissory  note  is  a  separate  instrument  from  the  note,  the  title 
to  it  will  pass  by  delivery  with  the  note  for  a  good  consideration, 
and  this,  without  any  written  assignment  of  the  guaranty.^  It 
has  likewise  been  held  that  when  a  guaranty  is  written  on  a  prom- 
issory note,  and  the  note  is  transferred,  the  sale  and  delivery  of 
the  note  with  the  guaranty  upon  it  {urm&hes  prima  facie  evidence 
of  a  sale  of  the  contract  of  guaranty,  and  that  the  holder  of  the 
note  is  the  owner  of  the  guaranty.'  A  general  guaranty  of  pay- 
ment of  a  promissory  note  which  named  no  person  as  the  party 
guarantied,  was  not  written  on  nor  attached  to  the  note,  and  it 
was  held  that  it  might  be  enforced  at  law  by  any  one  who  advanced 
money  upon  it  declaring  on  it  as  a  promise  to  himself.  But  it 
was  further  held,  that  the  guaranty  not  being  attached  to  nor  a 
part  of  the  note,  was  not  negotiable,  and  an  action  could  only  be 
brought  upon  it  in  the  name  of  the  person  in  whose  hands  it  first 
became  available.  The  court  said  that  if  it  had  been  attached  to 
the  note,  it  might  have  been  treated  as  an  indorsement,  and  would 
have  been  negotiable."  Where  a  guaranty  written  on  a  promis- 
sory note  named  the  person  guarantied,  and  proceeded,  "  I  here- 
by guaranty  the  payment  and  collection  of  the  within  note  to 
him  or  bearer,"  it  was  held  that  any  subsequent  holder  of  the 
note  miffht  sue  on  it  in  his  own  name.*  The  court  said,  it  was  a 
new  note  for  the  payment  of  money,  and  by  its  terms  negotiable. 
A  note" was  drawn  and  signed  by  H,  payable  to  IST,  and  indorsed 
by  IS",  the  latter  being  an  accommodation  indorser  for  H,  who  was 
the  principal.  E  guarantied  the  note  generally  on  its  back,  and 
the  note  was  discounted  by  a  bank,  and  the  bank  sued  E  on  his 
guaranty.  Held,  the  bank  need  not  prove  affirmatively  that  the 
contract  of  guaranty  was  made  with  it.  As  N  indorsed  for  the 
accommodation  of  H,  and  the  bank  was  the  first  holder  for  value, 
the  law  implied  that  the  guaranty  was  made  to  it.     Tlie  court 

^  Gould  r.EUery,  39  Barb. (N.Y.)163.  haustive  opinion,  contended  that  the 

'  Cooper  V.  Dedrick,  22  Barb.  (N.  Y.)  g-uaranty  in  this  case  was  negotiable, 

516.  but  the  majority  of  the  Court  of  Errors 

'McLaren  v.   AVatson's    Exi-s.,    26  held  otherwise. 

■Wend.  425,  per  Walwort,h,  C.    Sen-  *Ketchell  v.  Burns,  24  Wend.  456, 

ator  Verplanck,  in  an  able  and  ex-  per  Xelson,  C.  J. 


GUARANTY    PASSES   TO    ASSIGNEE   OF    DEBT.  45 

said,  tliat  the  guaranty  was  not  distinguishable  from  a  general 
letter  of  credit,  on  which  an  action  might  be  maintained  in  the 
name  of  the  person  who  gave  the  credit  on  the  faith  of  it.^ 

§  34.  Cases  holding  that  guaranty  of  debt  passes  to  assignee 
of  debt. — When  the  guaranty  is  not  of  the  payment  of  a  note,  it 
has  also  been  held  that  it  passes  by  a  transfer  of  the  debt  as  an 
incident  thereto.  Thus,  where  a  party  by  a  separate  covenant 
guarantied  the  payment  of  rent  and  the  performance  of  the  cov- 
enants of  a  lease,  it  was  held  that  the  guaranty  run  with  the 
land  and  passed  to  the  grantee  of  the  reversion,  who  might  sue 
the  guarantor  in  his  own  name  for  a  breach  of  the  covenant.  The 
court  said:  "  When  the  thing  to  be  done  or  omitted  concerns  the 
lands  or  estate,  that  is  the  medium  which  creates  the  privity  be- 
tween the  plaintiff  and  defendant."  ^  A  being  the  owner  of  a 
bond  and  mortgage  securing  the  same,  by  writing  on  the  back  of 
the  mortgage,  assigned  the  bond  and  mortgage  to  B,  and  the  as- 
signment then  proceeded,  "  and  hereby  guaranty  the  collection  of 
the  within  amount  as  it  becomes  due."  B  assigned  the  bond  and 
mortgage  to  C,  the  assignment  to  C  saying  nothing  about  the 
guarant}^  C  sued  A  on  the  guaranty  in  his  own  name  at  law, 
and  it  was  held  he  had  a  right  to  maintain  the  suit,  even  though 
the  guaranty  was  not,  in  terms,  assigned  to  him.  "  The  transfer 
of  the  debt  to  liim  carried  with  it  as  an  incident  all  the  securities 
for  its  pajnnent."^  It  has  been  held  that  parol  evidence  is  com- 
petent to  rebut  tlie  presumption  that  a  judgment  against 
an  iudorser  passes  by  an  assignment  of  a  judgment  against  the 
principal  when  nothing  is  said  in  the  assignment  about  the  judg- 
ment ao-ainst  the  indorser.'*  The  state  of  Virginia  guarantied 
the  payment  of  interest  on  coupon  bonds  issued  by  the  city  of 
Wheeling,  the  guaranty  being  that  the  state  guarantied  the 
"punctual  payment  of  the  interest."  It  was  held  that  if  the 
guaranty  was  not  transferable  at  law,  it  was  in  equity,  and  an 
interest  passed  in  equity  to  each  successive  holder  of  the  bond  or 
coupon.  The  guaranty  is  an  accessory  of  the  bond  or  coupon,  and 
follows  and  adheres  to  it  in-  equity,  and  the  right  to  enforce  the 
guaranty  must  be  determined  by  the  right  to  demand  payment 

'  Northumberland  Bank  v.  Eyer,  58  ^  Craig  v.  Parkis,  40  New  York,  181, 

Pa.  St.  97,  per  Sharswood,  J.  per  Lott,  J. 

'Allen  V.  Culver,  3  Denio,  284,  per  *  Bank  v.  Fordyce,  9  Pa.  St.  275. 
Jewett,  J. 


46  THE   CONTRACT. 

of  the  bond  or  coupon.^  '  H  and  O  being  partners,  H  sold  out  his 
interest  in  the  firm  property  to  O,  who  agreed  to  pay  the  firm 
debts,  among  them  a  debt  due  to  the  plaintiff.  The  defendant 
guarantied  the  performance  of  this  agreement.  The  plaintiff's 
debt  not  having  been  paid,  H  assigned  to  him  his  interest 
and  claim  under  the  agreement  and  the  guaranty:  Held,  %he 
plaintiff  was  entitled  to  recover  against  the  defendant  on  the 
guaranty,  which  having  been  made  for  his  benefit,  he  could  adopt 
and  enforce."  Under  a  similar  state  of  facts,  except  that  II  did 
not  assign  the  agreement  and  guaranty  to  the  plaintiff,  it  M'as 
held  that  there  was  no  privity  between  the  plaintiff  and  the  de- 
fendant, and  the  plaintiff  could  not  recover  against  the  defendant.^ 
§  35.  Cases  holding  guaranty  of  note  not  negotiable. — The 
payee  of  a  negotiable  promissory  note  indoi'sed  it  as  follows:  "  I 
guaranty  the  payment  of  the  within  note  without  demand  or  no- 
tice," and  sold  it  to  A,  who  sold  it  to  B,  and  B  sued  the  guaran- 
tor on  the  guaranty:  Held,  the  guaranty  was  not  negotiable,  and 
the  action  could  not  be  maintained.*  Where  a  stranger  to  a  note 
indorsed  it  in  blank,  and  added  to  his  name  the  word  "  holden,"  it 
was  held  that  this  constituted  him  a  guarantor,  but  that  the  guar- 
anty was  not  negotiable,  and  could  be  enforced  by  no  one  except  the 
person  with  whom  it  was  made."  A  negotiable  promissory  note 
and  a  guaranty  of  its  payment  by  a  stranger  indorsed  thereon, 
were  made  at  the  same  time:  Held,  the  guaranty  was  not  nego- 
tiable, and  did  not  pass  by  a  transfer  of  the  note.^  Where  a 
guaranty  was  made  on  the  back  of  a  promissory  note  after  the 
note  was  delivered,  it  was  held  that  it  did  not  pass  by  an  assign- 
ment of  the  note.'^  A  negotiable  promissory  note  was  signed  by 
A  as  maker.  Underneath  the  note  was  written  the  following 
guaranty:  "We  will  guaranty  the  payment  of  the  above  note 
given  to  (A)  for  fortj^-two  hundred  and  eighty  dollars : "  Held, 
the  guaranty  was  not  negotiable,  not  being  so  by  its  terms,  and 

^  Arents  v.  Tlie  Commonwealth,  18  ^  Irish  v.  Cutter,  31  Me.  536. 

Gratt,  (Va.)  750.  *  Tinker    v.    McCa»ley,     3     Mich. 

2  Claflin  V.  Ostrom,  54  New  York,  581.  188. 

"CampbeU  v.  Lacock,  40  Pa.  St.  448.  "<  How  v.   Kemball,  2  McLean,  103. 

*  Springer  v.   Hutchinson,    19  Me.  In  Levi  ».  Mendell,  1  Duvall  (Ky.)  77, 

359.    To  the    same    effect,   see   Ten  it  was  held  that  only  the  equitable 

Eyck  V.  Brown,  3  Pinney  (Wis.)  452,  title  to   a  guaranty  on  the  back  of  a 

and    Turley    v.    Hodge,   3    Humph.  note  passed  by  an  assignment  of  the 

(Tenn.)  73.  note. 


GUAEANTY    ON    NOTE   TKANSFERS   TITLE.  47 

that  it  could  not  be  sued  on  by  any  one  except  the  person  to 
whom  it  was  originally  given/ 

§  36.  Cases  holding  guaranty  of  bond  not  negotiable — When 
guaranty  on  back  of  note  transfers  title  to  note — Obligation  of 
surety  cannot  be  sold  alone. — A  party  guarantied  the  payment 
of  a  certain  bond  and  mortgage  "  to  Arthur  Cliilds,  the  present 
owner  and  holder  of  said  bond  and  mortgage,  his  executors  and 
administrators."  Held,  the  guaranty  was  a  personal  one,  confined 
to  Childs,  his  executors  and  administrators,  and  that  the  assignee 
of  the  bond  a^id  mortgage  could  not  maintain  an  action  on  the 
guaranty.'^  It  has  also  been  held,  that  a  covenant  of  guaranty, 
written  on  the  back  of  a  bond,  is  no  part  of  the  bond,  and  does 
not  pass  by  an  assignment  of  it.'  A  guaranty  on  the  back  of  a 
negotiable  promissory  note  signed  by  the  payee,  although  it  may , 
not  itself  be  negotiable,  is  a  sufficient  indorsement  of  the  note  to 
transfer  the  title  to  it.*  Principal  and  surety  signed  an  obliga- 
tion, judgment  was  recovered  against  the  holder  of  the  obligation, 
and  at  an  execution  sale  the  debt  due  by  the  surety  was  sold,  the 
principal  being  insolvent.  It  was  held  that  the  sale  was  invalid 
and  that  the  obligation  of  a  surety  could  not  be  sold  separate  from 
that  of  the  princi])al.  The  court  said  the  obligation  of  the  surety 
was  accessory  to  that  of  the  principal  and  could  not  be  separated 
from  it.' 

'Smith    V.   Dickinson,    6    Humph.  *Myrick  v.  Hasey,  27  Me.,  9.    To 

(Tenn.)261.  same  effect,  see  Heaton  v.  Hulbert,  3 

2  Smith  V.  Starr,  4  Ilun.,  (N.  Y.,)  123.       Scam.  (111.,)  489. 
"Beckley  v.  Eckert,  3  Pa.  St.,  292.  ^Andrus  v.  Chretien,  7  La.  0.  S.  (4 

Curry,)  318. 


CHAPTER  II. 


OF    THE    STATUTE    OF    FKAUDS. 


Section. 


Text  of  the    statute  of   frauds. 

General  observations 
Effect  of  the  -words   "no  action 

shall  be  brought"     . 
Meaning  of  the  words  "  any  spe- 
cial promise  "    . 
What    included    in    the    words 
"debt,  default  or  miscarriage" 
The  words  "  of  another  "  contem- 
plate the  present  or  future  pri- 
maiy  liability  of  a  principal    . 
If  there  is  no  remedy  against  a 
third  party,  the  promise  need 
not  be  in  writing.   Leading  case 
When    no    liability  incurred  by 
third  person,  promise  need  not 
be   in    writing.      Liability    of 
principal  need  not  be  express    . 
When  party  for  whom  promise  is 
made    cannot    become    liable, 
promise  need  not  be  in  writing 
When  promise  to  indemnify  with- 
in the  statute.     Principles  in- 
volved         

When  promise  to  indemnify  need 

not  be  in  writing;  instances    . 

When  promise  to  indemnify  must 

be  in  writing     .... 

If  original  debt  extinguished   or 

novated,  pi-omise  not  within  the 

statute 

When  promise  to  pay  out  of  pro- 
ceeds of  debtor's  property  not 
within  statute 
Creditor  relinquishing  lien  which 
does  not  inure  to  benefit  of 
promisor,  does  not  take  prom- 
ise out  of  statute 
When  transaction  amounts   to  a 


37 


39 


40 


41 


42 


43 


44 


45 


46 


47 


48 


49 


50 


Section, 
purchase  of  debt  or  lien  by  prom- 
isor, promise  not  within  statute     51 

When  promisor  who  is  debtor 
to  third  person  agrees  to  pay 
his  debt  to  creditor  of  such  third 
person,  promise  not  within  stat- 
ute      52 

When  promise  is  in  effect  to  pay 
promisor's  own  debt,  it  is  not 
within  statute,  although  it  inci- 
dentally guaranty  debt  of  an- 
other   53 

When  promisor  previously  liable, 
promise  not  within  statute        .     54 

New  consideration  passing  be- 
tween promisee  and  promisor 
will  not  alone  take  promise  out 
of  statute 55 

Promise  not  within  statute  when 
main  object  is  to  benefit  promis- 
or himself;    observations  .     56 

Promise  of  del  credere  agent  not 
within  statute  .        •         .57 

Promise  not  within  statute  unless 
made  to  party  to  whom  princi- 
pal is  liable        .        .        .        .58 

False  representations  of  another's 
credit  not  within  statute  .         .     59 

Promise  in  substance  to  pay  debt 
of  another,  no  matter  what  its 
form,  is  within  statute         .         .     60 

Promise  to  answer  for  future  lia- 
bility of  third  party,  is  within 
the  statute  .        .        .        .61 

Promise  within  statute  if  any  credit 

given  to  third  person         .        .     62 
When  promise  is  original  or  collat- 
eral, cases  holding  it  original    .     63 
Whether  promise  original  or  col- 


(48) 


TEXT    OF    STATUTE. 


49 


Section 
lateral  is  question  of  fact.    Evi- 
dence.    Cases  holding  promise 
collateral 

If  original  promise  in  writing,  ver- 
bal subsequent  promise  takes 
case  out  of  statute  of  limitations. 
Verbal  guaranty  sufficient  to 
support  verbal  account  stated    . 

The  form  of  the  vrriting 

The  whole  promise  must  appear 
from  the  writing 

Whether  the  consideration  must 
appear  from  the  writing    . 

Reasons  why  the  consideration 
should  appear    from  the  writ- 


64 


69 


Section, 

When  the  consideration  sufficient- 
ly appears  from  the  writing       .     70 

When  consideration  does  not  suf- 
ficiently appear,  or  consideration 
appearing  is  insufficient;  in- 
stances        

When  writing  ambiguous  it  may 
be  explained  by  parol  evidence 

When  several  papers  may  be  read 
together  to  express  considera- 
tion for  a  promise 

Whether  guaranty  of  note  must 
express  consideration 

Signature  by  party  to  be  charged 

Signature  by  agent 

Pleading 


71 


72 


§  37.  Text  of  the  statute  of  frauds — General  observations. — 
It  was  not  necessaiy  at  common  law  that  the  contract  of  a  surety 
or  guarantor  sliould  be  in  writing  in  order  to  charge  him.  This 
being  so,  the  Statute  29,  Charles  II.,  Chapter  3,  commonly  called 
the  Statute  of  Frauds,  was  passed.  The  fourth  section  of  that 
statute,  so  far  as  pertinent  to  the  subject  under  consideration,  was 
as  follows,  viz.:  "IN'o  action  shall  be  brouglit  whereby  to  charge 
the  defendant  upon  any  special  promise  to  answer  for  the  debt, 
default  or  miscarriages  of  another  person,  unless  the  agreement 
upon  which  such  action  shall  be  brought,  or  some  memorandum 
or  note  thereof,  shall  be  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  or  by  some  person  thereunto  by  him  lawfully 
authorized."  The  object  of  this  statute  was  the  "prevention  of 
maTiy  fraudulent  practices  which  are  commonly  endeavored  to  be 
upheld  by  perjury  and  subornation  of  |!erjury,"  and  in  certain 
cases,  which  from  their  nature  particularly  demanded  it,  the  substi- 
tution of  the  certainty  of  written,  for  the  uncertainty  of  umvritten, 
evidence.  It  was  a  wise  and  salutary  enactment,  and  has  been 
in  terms,  or  with  more  or  less  modifications,  generally  re-enacted 
in  the  United  States.  Many  decisions  have  been  rendered  on 
every  portion  of  the  Statute  of  Frauds,  and  among  them  will  be 
found  great  conflict  of  authority.  Perhaps  the  clearest  method 
of  presenting  this  subject  will  be  to  commence  witli  the  first 
words  of  the  statute  as  above  given,  and  proceed  seriatim  to  the 
last,  and  this  course  will  be  pursued. 
4 


50  THE    STATUTE    OF   FKAUDS. 

^  38.  Effect  of  the  words  "  no  action  shall  be  brought." — 
The  Statute  of  Frauds  does  not  provide  that  the  contract  to  an- 
swer lor  anotlier  sliall  be  illegal  or  void  if  not  in  writing.  It 
says  "  no  action  shall  be  brought."  The  contract  is  just  as  legal 
since  the  enactment  of  the  statute  as  it  was  before,  but  no  action 
can  be  brought  to  enforce  it.  In  most  cases  this  amounts  to  the 
same  thing  as  if  the  contract  had  been  declared  illegal,  but  in 
other  cases  it  does  not.  "When  the  contract  has  been  entirely 
executed  on  both  sides,  the  statute  will  not  in  any  manner 
affect  the  relations  of  the  parties.'  Money  paid  by  a  surety  or 
guarantor  in  pursuance  of  an  unwritten  promise  cannot  be  re- 
covered back  by  him,  although  he  could  not  have  been  comj)elled 
by  law  to  pay  it,  and  in  such  case,  the  principal  will  be  obliged 
to  reimburse  the  surety  or  guarantor  for  the  money  thus  paid.^ 
By  virtue  of  the  authority  of  courts  over  their  own  officers,  they 
will  sometimes  enforce  an  unwritten  agreement  by  their  officers 
which  could  not  otherwise  be  enforced,  because  of  the  Statute  of 
Frauds.  Thus  the  attorney  for  the  defendant  in  a  case,  in  con- 
sideration of  the  plaintiff  staying  proceedings  therein,  agreed  to 
compromise  the  action  and  give  his  two  promissory  notes  in  pay- 
ment. This  he  afterward  refused  to  do,  and  the  ccTurt  entered  a 
rule  upon  him  compelling  him  to  carry  out  his  agreement.  The 
court  said :  "  Even  supposing  the  undertaking  to  be  void  by  the 
Statute  of  Frauds,  this  court  may  nevertheless  exercise  a  sum- 
mary jurisdiction  over  one  of  its  own  officers,  an  attorney  of  the 
court.  Tlie  undertaking  was  giv^en  by  the  party  in  his  character 
of  attorney,  and  in  that  character  the  court  may  compel  him  to 
jDcrform  it.  An  attorney  is  conusant  of  the  law,  and  if  he 
give  an  undertaking  which  he  knows  to  be  void,  he  shall  not  be 
allowed  to  take  advantage  of  his  own  wrong,  and  say  that  the 
undertaking  cannot  be  enforced.'"  As  the  prohibition  is  against 
the  remedy,  the  courts  of  a  country  in  which  the  statute  prevails, 
will  not  enforce  an  unwritten  contract  of  suretyship  or  guaranty 
made  in  another  country,  which  was  perfectly  valid  and  enforce- 

*  Stone  V.   Dennison,    13   Tick.,  1  ;  Gunn,  4  Bin<r.  N.C.  445;    Andrews  v. 

Lord  Bolton  v.  Tomlin,  5  Adol.  &  Ell.  .Tones,  10  Ala.  400 ;  Watrous  v.  Chalk- 

856;  Mushat  V.  Brevard,  4  Dev.  (Nor.  er,  7  Conn.  224;  Crai^  v.   Vanpelt,  3 

<^^r.)  73.  J.  J.  Marsh,  (Ky.)  489. 

^  Shaw  V.  Woodcock,  7  Bam  &  Cres.  » In  re  Greaves,  1   Cromp.    &   Jer. 

73;  McCue  v.   Smith,   9  Minn.   252;  374,  n.;  see,  also,  Evans  v.  Duncan,  1 

Crane  v.  Gough,  4  Md.  316;  Pawle  v.  Tynv.  283. 


SPECIAL   PKOMISE.  51 

able  in  the  coiintrj  where  the  contract  was  made,'  This  is  npon 
the  principle  that  while  the  validity  and  binding  force  of  a  con- 
tract depends  upon  the  law  of  the  country  in  which  it  is  made, 
the  remedy  is  always  governed  by  the  law  of  the  country  in 
which  the  action  is  brought.  When  a  promise  is,  as  to  the  thing 
promised,  partly  within  and  partly  not  within  the  Statute  of 
Frauds,  if  the  parts  are  so  connected  that  the  contracting  parties 
must  reasonabl}'-  be  considered  to  have  contracted  with  reference 
to  the  performance  of  the  whole,  or  a  distinct  promise  cannot 
reasonably  be  made  out  as  to  the  portion  not  within  the  statute, 
no  action  can  be  brought  on  any  portion  of  the  contract;^  but 
where  the  portion  of  the  promise  which  is  not  ■within  the  statute 
can  be  separated  from  that  which  is,  an  action,  may  be  sustained 
upon  the  portion  not  within  the  statute.^ 

§  39.  Meaning  of  the  •words  "any  special  promise." — With 
reference  to  the  kind  of  promise  which  the  statute  provides  shall 
be  in  writing,  the  words  are  "  any  special  promise."  The  inten- 
tion was  by  these  words  to  confine  the  statute  to  actual  promises 
or  promises  in  fact  made,  and  so  it  has  been  interpreted.*  Prom- 
ises implied  by  law  are  not  within  the  operation  of  the  statute. 

§  4:0.  What  included  in  the  -words  "  debt,  default  or  miscar- 
riage."— The  liability  which  the  statute  contemplated,  was  for  the 
"  debt,  deiault  or  miscarriage  of  another."  These  words  '^  debt,  de- 
fault or  miscarriage,"  include  torts  of  the  principal  as  well  as 
breeches  of  contract  by  him,  and  apply  to  every  case  in  which  one 
person  can  become  responsible  for  another.  It  seems  at  one  time  to 
have  been  considered,  that  if  the  principal  was  not  chargeable  on  a 
contract,  but  was  only  liable  in  tort,  the  promise  to  answer  for 
him  would  not  be  within  the  statute,  ^  but  all  doubts  on  this  sub- 
ject  have  been  set  at  rest,  and  it  is  settled  that  a  promise  to  an- 
swer for  the  tort  of  another  is  within  the  statute.     Thus,  where 

'  Leroux  v.  Brown,  12  Com.  B.  801;  erbee,   11  Allen,   361;   Wetherbee  v. 

see,  also,  Huber  ?■.  Steiner,  2  Scott,  304.  Potter,  99  Mass.  354;  Dock  v.   Hart, 

"Chaterr.  Becket,  TTerm.   R.  201;  7  Watts  &  Serg.  172. 

Thomas  v.  Williams,  10  Barn  &  Cres.  *Pike  v.  Brown,  7  Cush.    133;  Sage 

664;    Thayer  t\  Rock,  13  Wend.  53;  r.   Wilcox,  6  Conn.  81;    Goodwin  °;. 

McMullen  r.  Riley,  6  Gray,  500;  Dyer  Gilbert,  9  Mass.   510;  Allen  r.  Pryor, 

V.  Graves,  37  Vt.  369.  3  A.  K.  Marsh,  (Ky.)  305. 

^  Wood  V.  Benson,  2  Cromp.  &  Jer.  ^  Buckmyr  v.  Damall,   2  Ld.  Raym. 

94;  Id.  2  Tyi-wh.  93  ;  Rand  v.  Math-  1085;  see,  also,  Reed  v.  Nash,  1  Wils. 

er,  11  Cush.  1;  see,  also,  Hess  v.  Fox,  305. 
10  Wend.  436;  Trowbridge  v.  Weth- 


52  THE   STATUTE   OF   FKAUDS. 

one  person,  without  the  license  of  another,  had  ridden  sucli  other's 
liorse  and  thereby  caused  its  death,  it  was  held  that  a  promise  by 
a  third  person  to  answer  the  damage  caused  therebj^,  in  consider- 
ation that  the  owner  of  the  horse  would  not  bring  an  action 
ao-ainst  the  person  causing  its  death,  was  within  the  statute,  and 
no  action  could  be  brought  upon  it  unless  it  was  in  writing.  The 
court  said:  "Tlie  wrongful  riding  the  horse  of  another  without 
his  leave  and  license,  and  thereby  causing  his  death,  is  clearly  an 
act  for  which  the  j^arty  is  responsible  in  damages,  and  therefore, 
in  my  judgment,  falls  within  the  meaning  of  the  word  '  miscar- 
liao-e.'  " '  These  words  have  been  variously  commented  upon  by 
different  courts.  It  has  been  said  by  some  that  the  words  "  debt " 
and  "  default,"  both  referred  to  a  liability  accruing  upon  a  con- 
tract; the  word  "debt"  to  such  as  is  already  incurred,  and  the 
\vord  "  default  "  to  such  as  may  be  incurred  in  the  future :  '^  Of 
the  word  "  miscarriage  "  it  has  been  said:  "  Now  the  word  '  mis- 
(jurriage'  has  not  the  same  meaning  as  the  word  '  debt '  or '  default; ' 
it  seems  to  me  to  comprehend  that  species  of  wrongful  act  for  the 
consequences  of  which  the  law  would  make  the  party  civilly  re- 
sponsible." '  Whatever  meaning  ma}'"  be  attached  to  any  one  of 
these  words,  the  three  together  cover  every  case  in  which  a  surety 
ur  guarantor  can  become  responsible  in  a  civil  action  for  another. 
§  41.  The  words  "of  another,"  contemplate  the  present  or 
future  primary  liability  of  a  principal. — The  words,  "of  another 
])erson,"  have  given  rise  to  a  vast  number  of  decisions.  As 
said  by  an  able  court:  "The  cases  on  this  branch  of  the  Statute 
of  Frauds  are  so  numerous  that  it  would  be  a  difficult  task  to 
review  them ;  and  the  distinctions  as  to  cases  which  are  or  are 
not  within  the  statute  are  so  nice,  and  often  so  shadowy,  that  it 
would  be  still  more  difficult  to  reconcile  them."*  The  result  of 
the  authorities  is  that  in  order  to  bring  the  promise  within  the 
prohibition  of  the  statute,  it  must  be  "collateral"  to  a  liability 
on  the  part  of  a  principal.  In  other  words,  there  must  at  the 
time  the  promise  is  made,  be  an  actual  primarj^  liability  of  a 

*  Kirkham   v.  Matter,    2    Bam.   &  Mountstepben  v.  Lakeman,  Law  Rep. 

Aid.  613,  per  Abbott,  C.  J.;  see,  also,  7  Q.  B.  196,  per  Willes,  J. 

to  same  eflect,  Turner  v.   Hubbell,  2  ^Kirkham  v.  Marter,  2  Barn,   and 

Day,  (Conn.)  457.  Aid.  613,  per  Abbott,  C.  J. 

^Castling  v.  Aubert,  2  East,  325;  *SliawC.  J.,  in  Chapin  v.  Lapham, 

per   Lord   Ellenborough  ;    see.  also,  20  Pick.  467. 


WHERE    NO    REMEDY    AGxVINST    PRINCIRAL.  53 

principal  to  tlie  promisee  wliicli  continues  after  the  making  of  tlie 
promise,  or  there  must  be  contemplated,  as  the  basis  of  such 
promise,  the  future  primary  liability  of  a  principal.  The  founda- 
tion of  the  contract  of  suretyship  and  guaranty,  is  the  primary 
liability  of  another.  In  order  to  a  clear  and  full  understanding 
of  the  above  general  statement  of  the  result  of  the  authorities  on 
this  subject,  a  more  detailed  examination  of  such  authorities  will 
be  necessary. 

§  42.  If  there  is  no  remedy  against  a  third  party,  the  promise 
need  not  be  in  writing — Leading  case. — A  leading  and  celebra- 
ted, case  on  this  subject  is  reported  as  follows:  "  Declaration — 
that  in  consideration  the  plaintiff  would  deliver  his  gelding  to  A, 
the  defendant  promised  that  A  should  re-deliver  him  safe,  and  ev- 
idence was  given  that  the  defendant  undertook  that  A  should  re- 
deliver him  safe;  and  this  was  held  a  collateral  undertaking  for 
another,  for  where  the  undertaking  comes  in  aid  only  to  procure 
a  credit  to  the  party,  in  that  case  there  is  a  remedy  against  both, 
and  both  are  answerable  according  to  their  distinct  engagements; 
but  where  the  whole  credit  is  given  to  the  undertaker,  so  that  the 
other  party  is  but  his  servant,  and  there  is  no  remedy  against 
liim,  this  is  not  a  collateral  undertaking.  But  it  is  otlierwise  in 
the  principal  case,  for  the  plaintiff  may  maintain  detinue  upon  the 
bailment  against  the  original  hirer,  as  well  as  assumpsit  upon  the 
promise  against  the  defendant.  Et  per  cur,  if  two  come  to  a 
shop,  and  one  buys,  and  the  other,  to  gain  him  credit,  promises 
the  seller,  '  if  he  does  not  pay  you,  I  will,'  this  is  a  collateral  un- 
dertaking, and  void  without  writing,  by  the  Statute  of  Frauds. 
But  if  he  says,  'let  him  have  the  goods,  I  will  be  your  paymas- 
ter,' or  '  I  will  see  you  paid,'  this  is  an  undertaking  as  for  him- 
self, and  he  shall  be  intended  to  be  the  very  buyer,  and  the  other 
to  act  but  as  his  servant." '  The  principle  here  announced,  that 
if  there  is  "no  remedy"  against  the  third  person,  the  promise  is 
original  and  need  not  be  in  writing,  has  been  applied  to  a  great 
variety  of  circumstances. 

§  43.      When    no   liability  incurred   by  third    person,    promise 
need    not  be  in  ^writing — Liability   of  principal    need  not  be  ex- 

^Buckmyr  v.   Darnall,    1   Salk.  27;  ject,    see     opinion    of  Willes,  J.,  in 

same  case  repoi-ted  6  Mod.  248,  and  2  Mountstephen  v.  Lakeman,  Law  Rep. 

Lord  Raj^m.  1085.    For  a  review  of  7  Q.  B.  196. 
this  case,  and  generally  on  this  sub- 


64:  THE   STATUTE   OF   FKAUDS. 

press. — "When  no  liability,  present  or  prospective,  is  incurred  by 
a  third  person,  that  is,  wlien  there  is  no  principal,  the  Statute  of 
Frauds  does  not  apply.  Thus,  where  A  brought  an  action  for 
assault  and  battery  against  B,  and  the  case  was  about  to  be  tried, 
and  C,  in  consideration  that  A  would  withdraw  his  record,  ver- 
bally promised  to  pay  him  fifty  pounds  and  costs  :  Held,  the 
promise  of  0  was  not  within  the  statute/  The  ground  upon 
which  the  decision  was  put  is  thus  stated  by  the  court:  "Johnson 
[B]  was  not  a  debtor ;  the  cause  was  not  tried ;  he  did  not  ap- 
pear to  be  guilty  of  any  debt,  default  or  miscarriage;  there  might 
liave  been  a  verdict  for  him,  if  the  cause  had  been  tried,  for  any- 
thing we  can  tell;  he  never  was  liable  to  the  particular  debt, 
damages  or  costs."  So  where  a  party  promised,  in  consideration 
of  the  widow  of  an  intestate,  permitting  him  to  be  joined  with 
her  in  the  letters  of  administration,  that  he  would  make  good 
any  deficiency  of  assets  to  pay  debts,  it  was  held  the  statute  did 
not  apph'.^  On  the  same  principle,  where  goods  are  furnished 
to  a  person  gratuitously,  a  verbal  promise  of  a  third  person  to  pay 
for  them  is  binding.^  While  there  must  be  a  liability  on  the  part 
of  some  one  to  which  the  liability  of  the  promisor  is  collateral, 
such  liability  need  not  be  express;  it  is  suflicient  if  it  is  implied 
by  law.^  In  all  cases  where  the  promise  is  to  answer  for  the  tort 
of  the  principal,  it  is  manifest  that  the  liability  of  the  principal 
is  implied  liy  law. 

^  44.  When  party  for  -whom  promise  is  made  cannot  become 
liable,  promise  need  not  be  in  writing. — A  promise  to  answer 
for  a  partj^  not  legally  competent  to  contract,  or  not  answerable 
for  his  wrongful  acts,  is  not  within  the  Statute  of  Frauds,  as  to  any 
matter  within  such  disability.  There  is  in  such  case  no  liability 
on  behalf  of  an}^  one  to  which  the  promise  is  collateral.  It  is 
therefore  an  original  promise,  and  need  not  be  in  writing.''  Thus 
A  procured  B  to  advance  money  to  pay  for  work  in  the  garden  of 
an  infimt.  B  sued  A  for  the  money,  and  the  question  was  as  to 
whether  the  evidence  was  suflicient  to  sustain  the  verdict.     Al- 

^  Road  V.  Nash,  1  Wils.  305,  per  Lee,  er  a  promise  to  answer  for  a  married 

*-  ■  J-  woman  need  or  need  not  be  in  writing, 

^Tomlinson  v.  Gill,  Amb.  330.  see  Connerat  v.  Goldsmith,  6  Ga.  14; 

'  Loomis  V.  Newhall,  15  Pick.  159.  White  v.  Cuyler,  1  Esp.  200;     LI.  6 

*  Redhead  v.  Cator,  1   Starkie,  12;  Term  R.  176;    Darnell  ?'.  Tratt,  2  Car. 

Whitcomb  V.  Kephart,  50  Pa.  St.  85.  &  P.  82;    Kimball  v.  Newell,  7  Hill, 

^  As  bearing  on  the  question  wheth-  1 IG. 


WIIEKE    TKINCIPAL    NOT    LIABLE.  55 

tliougli  not  strictly  necessary  to  the  decision  of  the  case,  one  judge 
said:  "The  infant  was  not  liable,  and  therefore  it  could  not  be  a 
collateral  understanding.  It  was  an  original  undertaking  of  the 
defendant  to  pay  the  money."  *  A  father  requested  a  merchant 
to  assist  his  minor  son  in  business,  and  promised  verbally  to  in- 
demnify him  against  any  loss  he  might  incur  in  so  doing,  and  it 
was  held  the  promise  need  not  be  in  writing.  The  court,  after 
saying  that  the  son  was  a  minor  and  not  liable  for  the  debt,  pro- 
ceeded: "The  undertaking  and  promise  of  the  defendant,  there- 
fore, was  not  collateral  to  any  promise  of  the  son,  but  was  sepa- 
rate, independent  and  original."  ^  A  tailor  furnished  an  infant 
ward  with  a  frock  coat,  without  the  order  of  the  guardian,  but  the 
guardian  afterwards,  in  consideration  of  indulgence,  verbally 
promised  the  tailor  to  pay  for  the  coat.  Held,  the  guardian  was  lia- 
ble. The  court,  after  saying  that  the  ward  was  not  liable  for  the  price 
of  the  coat,  said:  "the  promise  of  the  defendant  [the  guardian] 
was  original,  and  binding  on  him."  ^  A  wife,  whose  husband  had 
died,  leaving  her  his  estate  for  life,  remainder  to  his  nephew,  her- 
self died,  leaving  particular  directions  as  to  her  funeral.  These 
directions  a  friend  of  the  family  undertook  to  see  carried  out,  and 
bought  certain  articles  for  that  purpose,  telling  the  merchant  ver- 
bally that  the  estate  of  the  husband  would  pay  for  them,  and  if  it 
did  not,  she  would.  Held,  the  estate  of  the  husband  was  not  lia- 
ble for  the  articles  thus  purchased,  and  such  friend  was  liable  on 
her  verbal  promise.  The  court  said:  "When  no  action  will  lie 
against  the  party  undertaken  for,  it  is  an  original  promise."  ' 

^  Foster,  J.,  in  Harris  r.  Iluntbach,  must  be  in  wi-iting,  even  though  it  was 

1  Burrow,  373.  a  debt  which  the  son  could  not  be  co- 

^  Shaw,  C.  J.,  in  Chapin  v.  Lapham,  erced  to  pay.    The  decision  was  placed 

20  Pick.  467.     The  same  principle  was  upon  the  ground  that  the  contract  of 

applied  where  a  father  promised  to  pay  the  minor  was  not  void,  but  voidable, 

for  a  substitute  in  the  army  for  his  mi-  and  was  valid  till  avoided,  etc.     Nei- 

nor  sou  who  had  been  drafted;  see  ther  the  preceding  case  of  Chapin  v. 

Downey  v.   Hinchman,   25  Ind.  453;  Lapham,  20  Pick.  467,   in  the  same 

see,    also,    Buncombe    v.    Tickridge,  court,  nor  any  of  the  cases  herein  cited 

Aleyn,  94.  on  this  subject,  were  referred  to  or  no- 

' Roche  V.  Chaplin,  1  Bailey,  (So.  ticed.    The  cases  referred   to  in  the 

Car.)  419,  per  Johnson,  J.     In  Dexter  text  seem  to  be  founded  on  much  ths 

r.  Blanchard,  11  Allen,  365,  the  Su-  better  reason,  and  ai%  more  in  harmo- 

preme  Court  of  Massachusetts  decided  ny  with  the  cases  on  other  phases  of 

expressly  that  the  verbal  promise  of  a  this  subject. 

father  to  pay  the  debt  of  a  minor  son,  *  Mease     v.    Wagner,    1     McCord, 

was  within  the  Statute  of  Frauds,  and  (So.  Car.)   395,   per  Huyer,  J.    See, 


56  THE   STATUTE    OF    FKAUDS. 

§  45.  When  promise  to  indemnify  within  the  statute — Principles 
involved. — "With  reference  to  whether  a  promise  to  indemnity  a 
person  from  loss  in  consequence  of  such  person  doing  an  act  or  as- 
snmini^  an  obligation  is  within  the  statute,  no  general  rule  which 
will  reconcile  all  the  cases  can  be  laid  down.  A  mere  promise  of 
indemnity  which  is  not  collateral  to  any  liability  on  the  part  of 
another,  either  express  or  implied,  is  not  within  the  statute,  and 
such  a  case  illustrates  the  rule  that  when  there  is  no  principal 
the  promise  need  not  be  in  writing.  On  the  other  hand,  when 
the  promise  to  indemnify  is  in  fact  a  j^romise  to  pay  the  debt  of 
another,  then  clearly  such  ])romise  is  within  the  statute,  and  the 
fact  that  it  is  in  form  a  promise  to  indemnify  will  make  no  differ- 
ence.^ These  propositions  are  correct  in  principle  and  are  fully 
sustained  by  authority.  Many  cases  do  not  fall  plainly  under 
either  head,  and  the  confusion  in  the  authorities  has  chiefly  arisen 
from  not  keeping  the  distinction  between  the  two  cases  clearly  in 
mind,  or  from  the  application  of  these  recognized  principles  to 
different  states  of  fact.  Great  stress  has  often  been  laid  upon  the 
word  "  indemnify, "  when  in  fact  none  should  be  given  to  it  and 
the  actual  transaction  should  be  carefully  scanned  to  ascertain 
the  true  nature  and  bearings  of  the  promise.  The  law  on  this 
subject  has  been  thus  stated  by  a  celebrated  judge:  "  Isow  it  has 
been  laid  down  that  a  mere  promise  of  indemnity  is  not  within  the 
Statute  of  Frauds,  and  there  are  many  cases  which  would  exemplify 
the  correctness  of  that  decision.  On  the  other  hand,  an  under- 
taking to  answer  for  the  debt  or  default  of  another,  is  within  the 
Statute  of  Frauds,  and  no  doubt  some  cases  might  be  put  where  it 
is  both  the  one  and  the  other:  that  is  to  say,  where  the  promise 
to  answer  for  the  debt  or  default  of  another  would  involve  what 
might  very  properly  and  legally  be  called  an  indemnity.  "Where 
that  is  the  case,  in  all  probability  the  undertaking  would  be  con- 
sidered as  within  the  Statute  of  Frauds  if  it  were  to  answer  for 
the  debt  or  default  of  another,  notwithstanding  it  might  also  be 
an  indemnity."  ^ 

§  46.      When  promise  to  indemnify    need  not  be  in    writing — 

Instances. — A  j)romise  to  indemnify  a  party  against  loss  if  he 
♦ 

also,    Drake    v.    Flewellen,    33    Ala.      haustive  opinion  of  Comstock  C.  J.,  in 
106.  Mallory  t;.  Gillett,  21  New  York,  412. 

^CarviUe?;.  Crane,  5  Hill,  483:  See  •■*  Per    Pollock    C.   B.  in  Cripps    v. 

generally,   on    this  subject,     the    ex-      Ilartnoll,  4  Best  &  Smith,  414. 


PROMISE   TO    INDEMNIFY.  57 

will  commence  or  defend  a  suit,  has  been  held  not  to  be  within 
the  Statute  of  Frauds.  As  where  the  indorser  of  a  dishonored  bill 
of  exchange  verbally  promised  to  indemnify  a  subsequent  indorsee 
against  costs  if  he  would  bring  an  action  against  tlie  acceptor,  it 
was  held  the  promise  was  not  within  the  statute.'  A  promise 
to  indemnify  a  party  if  he  will  commit  a  trespass  in  order  to  raise 
a  question  of  title,  has  been  held  not  to  be  within  the  statute. 
The  court  said:  "  The  promise  was  not  to  indemnify  for  the  de- 
fault of  another;  but  was  made  to  the  plaintiif  himself  for  an 
act  to  be  done  by  him  as  the  servant  of  the  defendant  below.  It 
was  an  original  understanding,  and  not  a  collateral  promise.'" 
So,  also,  a  verbal  promise  to  indemnify  an  occupier  of  land  if  he 
will  resist  a  suit  of  the  vicar  for  tithes,  has  been  held  not  to  be 
wuthin  the  statute.^  An  attorney  authorised  a  distress  for  rent 
due  his  client,  and  verbally  promised  to  indemnify  the  party  ex- 
ecuting the  distress  warrant  from  damage  by  reason  of  the  goods 
being  privileged  from  distress.  Held,  the  promise  to  indemnify 
was  not  within  the  statute.^  A  party  agreed  to  pay  a  certain  sum 
annually  to  certain  trustees  of  a  church  toward  the  support  of  a 
minister.  The  jninister,  for  a  consideration,  promised  to  indem- 
nify the  party  against  loss  by  reason  of  such  agreement.  Held, 
the  promise  was  not  within  the  statute.^  Where  A  being  bound 
to  indemnify  B  in  a  certain  civil  suit  in  which  he  was  arrested, 
requested  C  to  become  special  bail  for  B,  and  promised  to  indem- 
nify him,  the  promise  was  held  to  be  an  original  undertaking 
and  not  within  the  statute.  This  decision  was  put  upon  the 
ground,  that  as  A  was  himself  bound  for  B,  the  promise  to  C 
was  for  A's  own  benefit.^  A  promise  to  indemnify  one  if  he  will 
become  bail  for  another  in  a  criminal  case,  has  been  held  not  to 

^Bullock  I'.  Lloyd,  2  Car.  and  P.  119.  and  Ell.  453;  and  see  Goodspeed  v. 

See,  also,    to    same  effect,    Howes  v.  Fuller,  46  Me.  141. 

Martin,  1  Esp.  162;    contra,  Winck-  *ToplistJ.  Grane,  5  Bin^.  (N.C.)  636. 

worth  V.  Mills,  2  Esp.  484.  ^Co^key  v.  Hopkins,  17  Johns,  113. 

^  Per  Redcliff,  J.  in  Allaire  v.  Ouland,  ^  Harrison  v.  Sawtel,  10  Johns,  242. 

2  Johns.  Cas.  52.     See,  also,  to  same  See,  also,  Ferrell  v.  Maxwell,  28  Ohio 

effect,    Marcy  v.  Crawford,  16  Conn.  St.  388.     In  a  celebrated  case  which 

549;   and  see  Weld.   v.   Nichols,    17  differed  from  the  above,  only  in  the 

Pick.    538;      Chapman    v.    Ross,    12  fact  that  A  was  not  Bound  to  indemni- 

Leigh,  (Va.)  565.  fy  B,  it  was  held  that  the  promise  must 

''Adams  v.   Dansey,    6  Bing-.    506.  be  in  writing.     Green  v.  Creswell,  10 

See  comments  on  this  case  by   Lord  Adol.  and  EU.  453,  Id.  2  Perry  &  Dav. 

Denman  in  Green  v.  Creswell,  10  Adol.  430. 


58  THE    STATUTE    OF   FKAUDS. 

be  within  the  statute.^  The  reason  given  for  this  holding  in  one 
case,  is  that  the  person  bailed  is  under  no  obligation  to 
indemnity  the  bail,  and  in  another,  is  that  if  the  person 
bailed  is  under  an  implied  obligation  to  indemnify  the  bail 
the  party  requesting  the  bail  to  become  such  should  be  held  to 
be  the  original  promisor,  and  the  party  bailed,  only  collaterally 
liable.  Where  a  party  who  M'as  surety  for  the  maker  of  a  note 
procured  others  to  sign  as  sureties,  by  promising  to  indemnify 
them,  and  save  them  harmless,  it  was  held  that  such  promise 
was  an  original  undertaking,  and  not  within  the  statute." 

§  47.  When  promise  to  indemnify  must  be  in  •writing — In- 
stances.— Where  an  attorney  requested  a  party  to  execute  to  the 
sheriff  a  bail  bond  in  a  civil  case  for  his  client,  and  promised 
to  indt-mnify  such  party  for  so  doing,  it  was  held  the  promise  was 
within  the  statute.  The  court  said  the  test  was  that  "  the  origi- 
nal party  remained  liable,  and  the  defendant  incurred  no  liability 
exce^^t  from  the  promise."  '  A  promise  by  one  person  to  indem- 
nify another  against  loss  or  damage  in  becoming  the  surety  for 
a  third  in  an  undertaking  of  replevin,  has  been  held  to  be  within 
the  statute.*  The  court  said:  "If,  therefore,  the  third  person 
against  whose  debt,  default  or  miscarriage  the  j^romise  of  indem- 
nity is  made,  would  himself  be  legally  liable  to  pay  the  promisee 
such  debt  or  damage,  the  promise  of  indemnity  is  to  be  regarded 

^Cripps  V.   HartnoU,    4   Best   and  Goodwin,  31  Yt.   268;    Byers  v.   Mc- 

Smith,  414;    Holmes  v.   Knig-hts,    10  Clanahan,  6  Gill.  &  Johns.  250;  Dunn 

New.  Hamp.  175.  r.  West,  5  B.  Mon.  (Ey.)  376;  Apgar's 

2  Horn    V.    Bray,   51  Ind.  555.    To  Admr.   v.  Hiler,  4  Zab.  (N.  J.)  812; 

same  effect,  see  Thomas  v.  Cook,    8  Lucas  v.  Chamberlain,  8  B.  Mon.  (Ky.) 

Bam.  &  Cress.  728;  Id.  3  Man.  &  Ry.  276;  Marsh  v.  Consolidation  Bank,  48 

444.    For  cases  holding  or  tending  to  Pa.   St.   510;    D'Wolf  v.   Raband,   1 

establish  that  under  various  circum-  Peters,  476;  Stocking  r.  Sage,  1  Conn, 

stances  a  promise  to  indemnify  need  519;  Jones  v.  Shorter,  1  Kelley  (Ga.) 

not  be  in  writing,  see  Chapin  f.  Mer-  294;   Townsley  r.   Surarall,  2  Peters, 

rill,  4  Wend.  657;  Barry  v.  Ransom,  170;  Emerson  v.  Slater,  22  How.  (U. 

12  New  York,  462;  Taylor  v.  Savage,  S.)  28;  Shook  r.  Yanmater,  22  Wis. 

12  Mass.   98;    Smith  v.   Sayward,  5  507. 

Greenl.  504;  Aldrich  r.  Ames,  9  Gray,  *Per  Lord   Denman    in  Green    v. 

76;  Cutter  v.  Emery,  37  New  Hamp.  Cresswell,  2  Perry  &:  Dav.  430;  Id  10 

567;  Han-is  v.  Brooks,  21  Pick.   195;  Adol.  &  Ell.  453. 

Whitehouse  v.  Hanson,  42  New  Hamp,  *  Easter  v.  White,  12  Ohio  St.  219, 

9;  Blake  r.  Cole,  22  Pick.  97;  Hodges  per  Sutliff,   J.     See    to  same    effect, 

■f.  Hall,    29    Yt.    209;    Hendi-ick    v.  Kmgsley  v.  Balcombe,  4  Barb.  (N.  Y.) 

Whittemore,  105  Mass.  23;  Keith  v.  131. 


WHERE   ORIGINAL    DEBT   EXTINGUISHED.  59 

as  collateral  to  his  liability  as  principal,  and  witliiu  the  statute." 
A  promise  by  one  person  to  another  that  he  will  indemnity  such 
other  from  loss  which  he  may  sustain  by  reason  of  signing  a 
sheriff's  bond,  has  been  held  to  be  within  the  statute.*  The  same 
thing  was  held  when  one  who  was  himself  indemnified  by  prop- 
erty of  the  principal,  promised  to  indemnify  a  third  person  if  he 
would  sign  a  note  of  the  principal  as  surety.^  From  the  ex- 
amples given,  the  confusion  in  the  authorities  on  this  subject 
will  be  apparent,  as  well  as  the  necessity  of  carefully  analvzino- 
the  facts  of  each  case  as  it  arises,  and  applying  to  it  the  principles 
which  have  already  been  shown  to  be  established. 

§  -is.  If  original  debt  extinguished  or  novated,  promise  not 
within  the  statute. — When  the  new  promise  has  the  eflect  of  extin- 
guishing the  old  debt,  it  amounts  to  an  original  undertatino-,  and 
is  not  within  the  statute.  ^  In  such  case  there  is  no  third  person 
liable  as  principal;  there  is  no  liability  to  which  the  promise  is 
collateral;  nor  is  there  any  obligation  with  which  the  promise 
concurs  or  runs  together.  A  son  did  work  for  his  father,  for 
which  the  father  was  indebted,  and  the  defendant,  in  considera- 
tion of  the  son  releasing  the  father  from  such  debt,  verbally 
promised  to  pa,y  it.  Held,  the  j^romise  was  not  within  the  stat- 
ute, and  the  defendant  was  bound.*  The  court  said:  "The  plain- 
tiff discharged  the  debt  due  to  him  from  his  father,  in  considera- 
tion of  tlie  defendant's  promise  to  pay  him  the  amount  due  him. 
This  promise  was  not  a  promise  to  pay  the  debt  of  anotlier  with- 
in the  Statute  of  Frauds,  but  an  original  undertaking.  The  de- 
fendant promised  to  pay  the  money,  not  as  surety  or  guarantor, 

^  Brown  r.  Adams,  1  Stew.  (Ala.)  51.  ject,   see    Gull    v.   Lindsay,   4  Wels. 

^Draughanf.  Buuting.,9  Ired.  Law.  Hurl.  &  Gor.  45;  Eddy  v.  Roberts,  17 

(Nor  Car.)  10.     For  cases  holding  or  111.  505;  Watson  v.  Randall,  20  Wend, 

tending  to  show  that  certain  promises  201;  Click  v.  McAfee,  7  Port,  (Ala.) 

to  indemnify  must  be  in  %vi-iting,  see  62;  Mead  v.  Keyes,  4  E.  D.  Smith  (N. 

Simpson  v.  Nance,  1  Spears  (So.  Car.)  Y.)  510;  Gleason  v.   Briggs,   28  Vt. 

4;  Martin  «'.  Black's  Exrs.  20  Ala.  309.  135;  Andre  v.  Bodman,  13  Md.  241; 

Brush  V.  Carpenter,  6  Ind.  78;  Macey  Watson  v.  Jacobs,  29  Vt.  169;  Robiu- 

V.  Childress,  2  Tenn.  Ch.  R.  (Cooper)  son  v.  Lane,  14  Sm.  &  Mar.  (Miss.) 

438.  161;  Quintard  v.  D'Wolf;  34  Barb.  (N. 

5  Curtis  V.  Brown,  5  Gush.    (Mass.)  Y.)  97;    Mosely  v.  Taylor,   4  Dana, 

488;  Allshouse  v.  Ramsay,  6  Wharton  (Ky.)  542;  Stewart  v.  Hinkle,  1  Bond, 

(Pa.)  331;  Stone  v.  Symmes,  18  Pick.  506;  Hedges  v.  Strong,  3  Oregon,  18, 

467;  Bird  v.  Gammon,  3  Bing.  N.  C.  *  Wood  v.  Corcoran,  1  Allen,  (Mass.) 

883.     As  further  illustratmg  this  sub-  405,  per  Hoar,  J. 


60  THE    STATUTE    OF    FEAUDS. 

but  as  the  sole  debtor;  not  as  a  collateral  promise,  but  as  a  sub- 
stituted promise.  There  was  no  debt  of  another  as  soon  as  the 
defendant's  promise  was  made."  Where  a  party  was  taken  on  a 
ca.  sa.  and  in  consideration  of  the  creditor  discharging  him  from 
custody,  a  third  person  verbally  promised  to  pay  the  debt,  it  was 
held  that  by  such  discharge  the  debt  was  extinguished,  and  tbe 
promise  was  not  within  the  statute.  The  court  said:  "  By  tbe 
discharge  of  Chase  with  the  plaintiff's  consent,  the  debt  as  be- 
tween those  persons  was  satisfied.  '=^'  Then,  if  so,  the  promise  by 
the  defendant  here  is  not  a  collateral  but  an  original  promise,  for 
whicli  the  consideration  is  the  discharge  of  the  debt  as  between 
the  plaintiff  and  Chase.'"  For  the  same  reasons,  where  there  is 
an  entire  novation  of  the  debt,  and  the  third  party  becomes  ver- 
bally bound  for  the  new  debt  along  with  tlie  original  debtor,  the 
new  agreement  is  not  within  tlie  statute.  Thus,  where  one 
person  was  indebted,  and  entered  into  partnership  with  another, 
and  the  two  said  to  the  creditor  of  the  one  that  they  wished  the 
debt  to  be  their  joint  debt,  and  they  would  pay  it,  and  tlie  cred- 
itor consented,  it  was  held  the  agreement  was  binding  upon  both, 
and  need  not  be  in  writing,  the  effect  of  the  agreement  being  to 
extinguish  the  first  debt,  and  substitute  another  for  it.^ 

§  49.  When  promise  to  pay  out  of  proceeds  of  debtor's  prop- 
erty not  within  statute. — A  promise  to  pay  tlie  debt  of  another 
out  of  the  proceeds  of  property  of  such  other,  placed  in  the 
hands  of  the  promisor  for  that  purpose,  is  not  within  the  statute.* 

^  Goodman  v.  Chase,  1  Barn  &  Aid.  Tyrwli.  6;  Hitchcock  v.  Lukens,  8  Per. 
297,  per  Lord  Ellenborough,  C.  J.;  to  (Ala.)  333;  Loomis  v.  Newhall,  15 
same  effect,  see  Lane  v.  Bnrghart,  1  Pick.  159;  Andrews  v.  Smith,  Tyrwh. 
AdoL  &  Ell.  (N.  S.)  933;  Cooper  v.  &  Gr.  173;  Id.  2  Cromp.  Mees.  &  Res. 
Chambers,  4  Dev.  (N.  C.)  261;  Butch-  627;  Todd  v.  Tobey,  29  Me.  219;  Nel- 
er  V.  Stewart,  11  Mees.  &  Wels.  857;  son  v.  Hardy,  7  Ind.  364;  Lucas  v. 
MaggstJ.  Ames,  4  Bing.  470.  Payne,  7  Cal.  92;  Stoudt.  t.  Hine,  45 
^  Ex  parte  Lane,  IDeGex.  300;  see.  Pa.  St.  30;  Consolidated  Presbyterian 
also,  on  this  subject.  Baker  v.  Briggs,  Society  v.  Staples,  23  Conn.  544:  Wil- 
8  Pick.  122;  Choppin  v.  Gobbokl,  13  son  t'.  Bevans,  58  111.  232;  McLaren  v. 
La.  An.  238;  Roth  r.  Miller,  15  Serg.  &  Hutchinson,  22  Cal.  187;  Clymer  r. 
Rawlx  100;  Sneed's  Exrs.  v.  White,  3  DeYoung,  54  Pa.  St.  118;  Cameron  v. 
J.  J.  Mai-sh  (Ky.)  525;  Musgrave  v.  Clark,  11  Ala.  259;  Hilton  v.  Dins- 
Glasgow,  8  Ind.  31.  more,  21  Me.  410;  Goddard  v.  Mock- 
'^ Meyer  v.  Hartman,  72  111.  442;  bee,  5  Cranch,  (C.  C.)  60G;  Laing  v. 
.  Runde  v.  Runde,  59  111.  98;  Corbin  v.  Lee,  Spencer,  (N.  J.)  337;  Lee  v.  Fon- 
McChesney,  26  111.  231;  Stephens  v.  taine,  10  Ala.  755;  Stanly  v.  Hen- 
Pell,  2  Cromp.  &  Mees.  710;     Id.  4  dricks,  13  Ired.  (Nor.  Car.)  86;  Mc- 


PKOMISE   TO    PAY   OUT    OF   DEBTOe's    PEOPERTT.  61 

111  siicli  case  the  promisor  is  simply  an  agent  to  distribute  tlie  prop- 
erty. The  promise  is  an  original  one  for  the  promisor  alone.  The 
party  owing  the  debt  is  not  liable  on  the  promise,  nor  is  any  otlier 
person  liable  thereon  except  the  promisor  himself.  In  a  leadiuo- 
case,  one  Taylor  being  in  arrears  for  rent,  and  insolvent,  conveyed 
all  his  effects  for  the  benefit  of  his  creditors,  who  employed  Leper 
to  sell  them.  On  the  day  advertised  for  the  sale,  the  landlord  came 
to  distrain  the  goods  in  the  house,  whereupon  Leper  promised  to 
pay  the  rent  if  he  would  desist.  Held,  this  promise  was  not 
wdthin  the  statute.'  Here  the  landlord  relinquished  his  prior  lien 
on  the  property,  or  in  other  words,  left  the  property  in  the  hands 
of  Leper,  and  Leper  in  effect  agreed  to  apply  the  proceeds  of  the 
sale  of  the  property  to  the  payment  of  the  debt  of  its  owner. 
One  of  the  judges  said  that  "Leper  became  the  bailiff  of  the 
landlord,  and  when  he  had  sold  the  goods  the  money  was  the  land- 
lord's in  his  own  bailiff's  hands."  Another  judge  said  that  Leper 
w^as  not  bound  to  pay  the  landlord  more  than  the  goods  sold  for. 
The  property  must  be  within  the  control  of  the  promisor,  in  or- 
der to  take  the  promise  out  of  the  statute;  it  is  not  sufficient  that 
he  is  the  agent  of  those  who  do  control  it.''  A  debtor  left  certain 
notes  of  third  persons  with  another  for  collection,  and  he  prom- 
ised the  debtor  to  collect  the  notes  and  pay  the  creditor  a  debt 
due  him  from  the  debtor.  Held,  the  promise  was  not  within  the 
statute.^  The  court  said:  "This  is  no  undertaking  to  pay 
the  debt  of  a  third  party,  within  the  Statute  of  Frauds;  but 
it  is  an  agreement  by  two  persons  for  the  use  and  benefit  of 
a  third,  upon  which  such  third  person  may  maintain  an  ac- 
tion against  the  person  promising,  without  proof  of  any 
written  memorandum  or  consideration  moving  between  the 
promisor  and  the  party  for  whose  benefit  the  contract  has 
been  made.  It  is  a  trust  which,  having  once  undertaken  to  exe- 
cute, and  entered  upon  the  performance  of  the  same,  although 
voluntarily  and  without  consideration,  other  than  such  as  the  law 
implies,  he  is  bound  in  law  and  equity  to  complete."     The  mere 

Kenzie  v.  Jackson,  4  Ala.  230;    Con-  '^  Quin  v.  Hanford,  1  Hill   (N.  Y.), 

tra,  Jackson  v.  Rayner,  12  Johns.  291.  82. 

MVilliams  tJ.  Leper,  3  Burr.   1886;  ^Prather   v.    Vineyard,    4  Oilman, 

Id.  2  Wils.  308;    to  same  effect,  see  (111.)  40,  per  Purple,  J.     To  same  ef- 

Edwards  v.  Kelly,  6  Maule  &  S.  204;  feet,  see  Drakeley  v.  Deforest,  3  Conn. 

Bampton    v.    Paulin,    4    Bing.   264;  272;    Sullivan  v.   Murphy,  23  Minn. 

Crawford  v.  King,  54  Ind.  6.  6. 


62      \  THE    STATUTE    OF    FKAUDS. 

f^ict,  liowever,  that  tlie  promisor  lias  in  liis  possession  property  of 
the  original  debtor,  which  was  not  deposited  with  him  for  the 
purpose  of  paying  the  debt,  will  not  of  itself  alone  take  the 
promise  out  of  the  statute.  *  It  is  also  clearly  established  that 
when  the  creditor  has  a  lien  on  property  of  the  principal  for  the 
payment  of  his  debt,  which  he  relinquishes  in  consideration  of 
the  promise,  and  such  lien  inures  to  tlie  benefit  of  the  promisor, 
the  promise  is  not  within  the  statute.  ^ 

§  50.  Creditor  relinquishing  lien  vyhich  does  not  inure  to 
benefit  of  promisor,  does  not  take  promise  out  of  statute. — 
AVliether  the  relinquishment  of  a  lien,  which  the  creditor  holds 
upon  property  of  the  principal  for  the  payment  of  tlie  debt,  when 
the  lien  does  not  inure  to  the  benefit  of  the  promisor,  is  sufhcient 
to  take  the  promise  out  of  the  statute,  seems  to  be  clear  upon 
principle,  but  is  a  very  vexed  question  upon  authority.  In  a 
leading  case  usually  referred  to  as  establishing  that  the  relinquish- 
ment of  a  lien  under  such  circumstances  does  take  the  promise 
out  of  the  statute,^  tlie  promisor  had  sent  certain  carriages  be- 
longing to  one  Copey  to  the  plaintiff  to  be  repaired,  and  the 
promisor  gave  the  orders  concerning  them.  The  bill  for  repairs 
was  made  out  to  Copey,  but  the  promisor  ordered  the  carriages 
packed  and  shipped,  and  verbally  promised  to  pay  for  the  repairs. 
The  court*  held  the  promise  not  within  the  statute,  on  the  ground 
that  the  plaintiff  had  parted  with  his  lien.  A  landlord,  who  had 
a  lien  for  board  upon  the  baggage  of  his  guest,  released  the  lien 
and  allowed  the  guest  to  take  the  baggage  upon  the  verbal  prom- 
ise of  a  tliird  person  to  pay  the  debt.  It  was  squarely  held  that 
the  promise  was  not  within  the  statute.  The  court  said: 
"  Where  one  has  a  complete  and  enforceable  lien  on  the  property 

1  Dilts  V.  Parke,  1  South.  (N.  J.)  219;  several  courts  been  tliougrht  to  estab- 
Statj  Bank  at  New  Brunswick  v.  lish  the  same  proposition,  and  deci- 
Mettler,  2  Bosw.  (N.  Y.)  392;  Simp-  sions  to  that  effect  have  been  founded 
son  V.  Nance,  1  Spears  (So.  Car.)  4;  upon  its  authority.  But  from  a  care- 
Hughes  V.  Lawson,  31  Ark.  613.  ful  examination  of  that  case,  it  will  ap- 

^  See    cases  cited    in    this    section.  pear  that  it  is  more  properly  referable 

See,  also,  Teague  v.  Fowler,  56.  Xnd.  to  other  grounds  and  that  it  is  an  au- 

^""-  thority  showing  that  a  promise  to  ap- 

»Houlditch  V.Milne,    3  Esp.  86.    It  ply  the  debtor's  property  in  the  hands 

seems,  however,  that  this  case  can  be  of  the  promisor  for  that  purpose,  to 

sustained  upon  other   grounds.     The  the  payment  of  his  debt,  is  not  within 

case  of   Wilhamsr.   Leper,    2  Wils.  the  statute. 

308.    Id.  3  Bun-.  1886,   has  also  by  *LordEldon. 


CKEDITOR   KELINQTJISHING   LIEN.  63 

of  liis  debtor,  a  promise  of  a  third  person  to  pay  the  debt  on 
condition  that  the  property  under  the  lien  is  given  up,  will  be 
held  binding,  and  not  within  the  Statute  of  Frauds.  This  upon 
the  ground  that  the  release  of  the  lien  is  the  surrender  of  a  se- 
curity operating  in  the  nature  of  a  payment,  and  therefore  if  not 
a  benefit  to  the  promisor,  is  a  prejudice  to  the  creditor  to  the  ex- 
tent of  his  loss.'"  If,  as  here  suggested,  the  surrender  of  the 
lien  discharged  the  original  debt,  then,  as  already  shown,  the 
promise  for  that  reason  would  not  be  within  the  statute.  But 
the  surrender  of  the  lien  does  not  usually  extinguish  the  original 
debt.  The  surrender  of  the  lien  being  a  detriment  to  the  creditor, 
is  undoubtedly  a  sufficient  consideration  for  the  promise,  but 
why  it  should  take  the  promise  out  of  the  statute  any  more 
than  any  consideration  which  is  a  detriment  to  the  creditor, 
or  in  fact  any  other  sufficient  consideration,  it  is  difficult  to 
perceive.  What  seems  to  be  the  true  view  of  this  subject  and 
the  one  which  is  sustained  by  the  weight  of  authority,  is  thus 
well  expressed:  "Where  the  plaintiff,  in  consideration  of  the 
promise,  has  relinquished  some  lien,  benefit,  or  advantage,  for  se- 
curing or  recovering  his  debt,  and  where  by  means  of  such  re- 
linquishment the  same  interest  or  advantage  has  inured  to  the 
benefit  of  the  defendant,  there  his  promise  is  binding  without 
writing.  In  such  case,  though  the  result  is  that  the  payment 
of  the  debt  of  a  third  person  is  effected,  it  is  so,  incidentally  and 
indirectly,  and  the  substance  of  the  contract  is  the  purchase  by 
the  defendant  from  the  plaintiff  of  the  lien,  right,  or  benefit  in 
question.  '-^  It  is  not  enough  that  the  plaintiff"  has  relinquished 
an  advantage,  or  given  up  a  lien  in  consequence  of  the  defend- 
ant's promise,  if  that  advantage  has  not  directly  inured  to  the 
benefit  of  the  defendant,  so  as  to  make  it  a  purchase  by  the  de- 
fendant from  the  plaintiff."^ 

^  Per  Butler,  J.  in  Dunlup  v.  Thorne,  this  effect  is  founded  upon  what  is  be- 

1  Richardson,  (So.  Car.)  213;  to  same  lieved  to  be  an  erroneous  view  of  the 

effect,  or  sustaining  same  view,  see  grounds  upon  which  WiUiams  v.  Le- 

Shook    V.  Vanmater,    22    Wis.    507;  per,  2  Wils.  308,  rested.     Mr.  Brown, 

Loves  case,  1  Salk.  28;  Slingerland  v,  in  his   able  work  on  the  Statute  of 

Morse,  7  Johns.  463;  Adkinsonr.  Bar-  Frauds,  pp.  195—204,  holds  that  the 

field,  1  McCord  (So.  Car.),  575;  Mer-  mere  relinquishment  of  a  lien  by  the 

cien  V.  Andrus,  10  Wend.  461 :  Bush-  creditor  does  not  take  the  promise  out 

ell  V.   Beavan,    1    Bing.   N.   C.    103.  of  the  statute. 

Nearly  all  of  the  authority  holding  to  ^  Per  Shaw,  C.  J.  in  Curtis  v.  Brown 


g^  THE    STATUTE    OF   FKAUDS. 

8  51.  When  the  transaction  amounts  to  a  purchase  of  debt  or 
lien  by  promisor,  promise  not  within  statute. — When  the  prom- 
ise to  pay  the  debt  of  another  is  made  in  consideration  of  the 
delivery  by  the  creditor  to  the  promisor  of  a  security  for  such 
debt,  or  of  an  assignment  of  the  debt  itself  to  the  promisor— that 
is  when  the  transaction  amounts  to  a  sale  by  the  creditor  to  the 
promisor  of  the  lien  or  the  debt — the  promise  is  not  within  the 
statute.  The  fact  that  the  payment  of  the  price  by  the  purchaser 
is  to  take  the  form  of  discharging  the  debt  of  another,  is  an  inci- 
dent in  the  transaction  which  does  not  deprive  the  purchase  of 
its  essential  character  as  such.  Thus  an  agent  who  had  a  lien 
on  certain  policies  of  insurance  effected  for  his  principal,  for  whom 
he  had  given  his  acceptances,  was  induced  by  the  defendant  to 
give  him  the  policies,  and  waive  the  lien,  and  the  defendant,  in 
consideration  thereof,  promised  to  pay  one  of  the  acceptances,  and 
to  deposit  money  for  the  payment  of  the  others  as  they  became 
due:  Held,  the  promise  was  not  within  the  statute.'  The  chief 
justice  said  that  the  defendant  "had  in  contemplation,  not  prin- 
cipally the  discharge  of  Grayson  [original  debtor],  but  the  dis- 
charge of  himself.  This  was  his  moving  consideration,  though 
the  discharge  of  Grayson  would  eventually  follow.  It  is  there- 
fore rather  a  purchase  of  the  securities  which  the  plaintiif  held 
in  his  hands.  This  is  quite  beside  the  mischief  provided  against 
by  the  statute,  which  was  that  persons  should  not,  by  their  own 
unavouched  undertaking  without  writing,  charge  themselves  for 
the  debt,  default  or  miscarriage  of  another.''  Another  judge 
said:  "This  is  to  be  considered  as  a  purchase  by  the  defendant 
of  the  plaintiif 's  interest  in  the  policies.  It  is  not  a  bare  prom- 
ise to  the  creditor  to  pay  the  debt  of  another  due  to  him,  but  a 

5  Cusli.  488;  supporting  this  view,  see  Hill  &  Denio,  (Lalor's  sup.)  47;  Cork- 

Ohater  v.  Beeket,  7  Term  R.  201;  Nel-  ins  r.  Collins,  16  Mich.  478;  Arnold  v. 

son  V.   Boynton,  3  Met.  (Mass.)  396;  Stedman,    45    Pa.    St.    186;    Bird  v. 

Tomhnson  v.  Gell,  6  Adol.  &  Ell.  564;  Gammon,  5  Scott,  213;  Woodward  v. 

Cross  f.  Richardson,  30  Vt.  641;  Alger  Wilcox,  27  Ind.  207;  Stoudt  v.  Hine. 

r.  Scoville,  1  Gray,  391;  Sampson  v.  45  Pa.  St.  30;    Fullam  v.  Adams,  37 

Hobart,  28  Vt.  697;  Mallory  v.  Gillett,  Vt.  391. 

23  Barb.  (N.  Y.)  610;  Smith  v.  Say-  ^  Castling  v.  Aubert,  2  East,  325,  per 

ward,  5  Greenl.  (Me.)  504;  Spooner  iJ.  Lord  EUenborough,    C.  J.,  and  Lav/- 

Dunn,  7  Ind.  81;  Fish  v.  Thomas,  5  rence,  J.     See,  also,  Walker «;.  Taylor, 

Gray,   45;  Stem  v.   Drinker,  2  E.  D.  6  Car.  &  Pa.  752;  Fitzgerald  v.  Dres- 

Smith,  (N.  Y.)  401;  Scott  v.  Thomas,  ler,  7  Com.  B.  N.  S.  374. 
1  Scam.  (111.)  58;  VanSlyck  v.  Pulver, 


AGREEMENT    BY    DEBTOR    TO    TAY    THIRD    TERSON.  65 

promise  by  the  defendant  to  pay  what  the  j^laintiff  would  be 
liable  to  pay  if  the  plaintiff  would  furnish  him  the  means  of  do- 
ing so."  In  another  case,  one  Marden,  being  insolvent,  a  verbal 
agreement  was  entered  into  between,  several  of  his  creditors  and 
one  Weston,  whereby  Weston  agreed  to  pay  the  creditors  ten 
shillings  in  the  pound  in  satisfaction  of  their  debts,  which  they 
agreed  to  accept,  and  to  assign  their  debts  to  Weston:  Held,  the 
promise  of  Weston  was  not  within  the  statute.  The  court  said: 
"  It  is  perfectly  clear  that  this  was  a  contract  to  purchase  the 
debts  of  the  several  creditors,  instead  of  being  a  contract  to  pay 
or  discharge  the  debts  owing  by  Marden.  *  Instead  of  be- 
ing a  contract  to  discharge  Marden  from  his  debts,  it  was  a  con- 
tract to  keep  them  on  foot.  *  We  all  agree  fully  upon  the 
point  that  it  is  a  contract  for  the  purchase  of  the  debts  of  Mar- 
den, which  is  not  prohibited  by  the  Statute  of  Frauds.' 

§  52.  "When  promisor  -who  is  debtor  to  third  person,  agrees  to 
pay  his  debt  to  creditor  of  such  third  person,  promise  not  "within 
statute. — If  A  be  indebted  to  B,  and  B  be  indebted  to  C,  and  they 
get  together  and  agree  that  B's  debt  to  C  shall  be  canceled,  and 
A  shall  pay  the  debt  which  he  owed  B  to  C,  such  agreement  is 
valid  and  binding  without  writing.^  In  such  case,  A  pays  his 
own  debt  with  his  own  money  to  a  substituted  creditor,  and  the 
fact  that  by  the  transaction  the  debt  of  another  is  paid,  makes  no 
difference.  So,  where  the  defendant's  brother  was  indebted  to 
the  plaintiff,  and  being  pressed  for  payment,  sold  the  defendant 

'  Anstey  v.  Marden,    1  Bos.  &  Pul.  4  Taunt.    117;  Williams  r.  Leper,  3 

N.  R.  124,  per  Chambre,  J.     See,  also,  Burr.  1886,  Id.  2  Wills,  308;  Edwards 

as  bearing  upon  this  subject.  Love's  v.  Kelly,  6  Maide  &  S.  204;  Bampton 

Case,  1  Salk.  28;   Allen  v.  Thompson,  v.  Paulin,  4Binor.  264. 

10  New  Hamp.  32;  Doolittle  v. Naylor,  ^ Dearborn  v.  Parks,  5  Greenl.  (Me.) 

2Bosw.  (N.Y.)  206;  French  r.Thomp-  81;  Wilson  v.  Coupland,  5  Bam.   & 

son,   6Vt.  54;  Therasson  v.  McSped-  Aid.   228;    Hodgson  v.   Anderson,   5 

on,   2  Hilton  (N.  Y.)  1;  Hindman  v.  Dow.  &  Ry.  735;  Id.  3  Barn.  &  Cress. 

Langford,   3  Strobh.  (So.  Car.)   207;  842;  Lacy  v.  McNeils,  4  Dow.  &  Ry. 

Gardiner  v.  Hopkins,    5  Wend.   23;  7.     It  seems  that  the  debt  of  B  must 

Olmstead  •;;.   Greenly,    18  Johns.    12.  be  extinguished  by  the  transaction,  in 

Mr.  De  Colyar,   in  his  valuable  work  order  to  take  the  case  out  of  the  stat- 

on  the  Law  of  Guarantees,  pp.  171-174,  ute;  Jackson  v.  Rayner,  12  Johns.  291 ; 

holds  to  the  view  that  the  following  Wharton  v.  Walker,  6  Dow.  &  Ry. 

cases  may  be  supported  by  the   rule  288;  Cuxon  v.  Chandley,  3   Barn.  & 

here  under  consideration:    Houlditch  Cres.  591;  Liversidge  v.  Broadbent,  4 

V.  Milne,  3  Esp.  86;  Barrell  v.  Trussel,  Hurl.  &  Nor.  603. 

5 


QQ  THE   STATUTE   OF    FRAUDS. 

a  pair  of  horses  at  a  price  less  than  the  debt  due  the  plaintiff, 
and  the  defendant  promised  his  brother  that  he  would  pay  the 
purchase  price  to  the  plaintiff,  the  court  said  the  promise  was  not 
within  the  statute:  "It  was  not  a  promise  to  answer  for  the  debt 
of  another  person,  but  merely  to  pay  the  debt  of  the  person  mak- 
ino-  the  promise  to  a  particular  person  designated  by  him  to  whom 
the  debt  belonged,  and  who  had  a  right  to  make  such  payment  a 
part  of  the  contract  of  sale.  Such  promise  was  no  more  within 
the  Statute  of  Frauds  than  it  would  have  been  if  the  defendant 
had  promised  to  pay  the  price  of  the  horses  directly  to  his  brother, 
of  whom  he  purchased  them."  * 

§  53.  "When  promise  is  in  effect  to  pay  promisor's  own 
debt,  it  is  not  within  statute,  although  it  incidentally  guaran- 
ty debt  of  another. — Whenever  the  promise  is  in  effect  to  pay 
the  debt  of  the  promisor,  even  though  the  performance  of  the 
promise  may  extinguish  the  debt  of  a  third  person,  the  promise 
is  not  within  the  statute.  A  debtor  gave  to  his  creditor  the  note 
of  a  third  person  for  the  same  amount  as  the  debt,  and  guaran- 
tied the  payment  of  the  note.  Held,  the  guaranty  need  not  be  in 
writing.^  The  same  thing  was  decided  where  the  payee  and 
holder  of  a  note  transferred  it  in  payment  of  his  debt,  and 
guarantied  its  payment  by  an  instrument,  which  did  not  suffi- 
ciently express  the  consideration.  The  court  said :  "Although  this  is 
in  form  a  promise  to  answer  for  the  debt  or  default  of  another,  in 
substance,  it  is  an  engagement  to  pay  the  guarantor's  own  debt  in 
a  particular  way.     He  does  not  imdertake  as  a  mere  surety  for 

^  Per  Jewett,  J.,  in  Barker  v.  Buck-  Christopher,  1  J.  J.  Marsh,  (Ky.)  382; 

lin,  2  Denio,  45.     For  cases  deciding  Connor  t?.  Williams,  2  Rob.  (N.Y.)46; 

and  tending  to  establish  these  views,  Robbins  v.  Ayres.  10  Mo.  538;  Clymer 

Bee  Roe  v.  Hough,  3  Salk.  14;  Rice  v.  v.  De Young,  54  Pa.  St.  118;  Mt.  Oli- 

Carter,  11  Ired.  (Nor.  Car.)  298;  Bar-  vet  Cemetery  Co.  v.  Sherbert,  2  Head, 

ringer  r.  Warden,  12  Cal.  311;  Israel  (Tenn.)    116;    Sanders   v.  Clason,    13 

V.    Douglas,    1    H.   Blackstone,    239;  Minn.  379;  Maxwell  t;.  Haynes,  41  Me. 

BroMTi  V.  Strait,  19  111.  88;  Fairlie  v.  559. 

Denton,  2  Man.  &  Ry.  353;  Id.  8  Barn.  ^  Dyer  v.  Gibson,  16  Wis.  508.     To 

&  Cress.  395;  Ford  v.  Finney,  35  Ga.  same  effect,  see  Barker  v.  Scudder,  56 

258;  Cailleux  v.  Hall,  1  E.  D.  Smith,  Mo.   272;  Hall  v.  Rodgers,  7  Humph. 

(N.Y.)  5;  Wharton?;.  Walker,  6  Don,  (Tenn.)  536;    Fowler  v.   Clearwater, 

&  Ry.  288;  Id.  4  Bam.  &  Ci-ess.  163;  35  Barb.  (N.  Y.)  143;  Durham  v.  Man- 

Rower.  Whittier,  21  Me.  545;  Cuxon  row,    2  New  York  533;    Adcock    v. 

V.  Chadney,  3  Barn.  &  Cress.  591;  Mc-  Fleming,  2  Dev.  &  Batt.  Law  (Nor. 

Laren  v.  Hutchinson,  22  Cal.  187;  Mey-  Car.)  225. 
er  V.  Hartman,  72  111.  442;  Haydon  v. 


PROMISE   TO    PAY   PROMISOe's   OWN   DEBT.  67 

tlie  maker,  but  on  his  own  account,  and  for  a  consideration  which  has 
its  root  in  a  transaction  entirely  distinct  from  the  liability  of  the 
maker." '  A  plaintiff  advanced  money  for  a  defendant,  and  in 
payment  of  the  debt  thus  created,  the  defendant  transferred  to 
the  plaintiff  the  note  of  a  third  person,  payable  in  chattels,  and 
guarantied  its  payment.  Held,  the  guaranty  need  not  be  in  writ- 
ing. ^  Tlie  court  said:  "This  was  not  an  undertaking  by  the  de- 
fendant to  pay  the  debt  of  Eastman  [maker  of  note],  but  an 
agreement  to  pay  his  own  debt  in  a  particular  way.  The  plain- 
tiff had  upon  request  paid  a  debt  of  twenty-five  dollars,  which 
the  defendant  owed  to  Sherwood,  and  had  tlius  made  himself  a 
creditor  of  the  defendant  to  that  amount.  If  the  matter  had  not 
been  otherwise  arranged,  the  plaintiff  might  have  sued  the  defend- 
ant, and  recovered  as  for  so  much  money  paid  for  him  upon  re- 
quest. But  the  plaintiff  agreed  to  accept  payment  in  a  different 
way,  to-wit:  by  the  transfer  of  Eastman's  note  for  the  wood-work 
of  a  wagon,  with  the  defendant's  undertaking  that  the  note  should 
be  paid.  The  defendant,  instead  of  promising  that  he  would  pay 
himself,  agreed  that  Eastman  should  pay.  He  might  do  that 
whether  Eastman  was  his  debtor  or  not;  and  the  fact  that  East- 
man was  a  debtor,  does  not  change  the  character  of  the  defen- 
dant's undertaking,  and  make  it  a  case  of  suretyship  within  the 
Statute  of  Frauds."  The  purchaser  of  personal  property  agreed  by 
parol,  in  consideration  thereof,  to  pay  certain  debts  of  his  vendor 
due  to  a  third  person.  Held,  the  promise  was  not  within  the  stat- 
ute. The  court  said:  the  promisor  "received  the  property  con- 
tracted for,  and  it  is  wholly  immaterial  to  him  what  direction 
was  given  to  the  purchase  money.  The  vendor  contracted  to 
have  it  paid  to  his  creditors,  instead  of  himself,  and  it  imposes 
no  hardship  upon  the  purchaser.  It  was  his  contract  so  to 
pay  the  purchase  money,  and  such  a  contract  is  valid  and  bind- 
ing in  law,  although  it  is  not  evidenced  by  any  writing.'"     On 

»  Brown  r.  Curtiss,  2  New  York,  225,  'Per  Scott,   J.,  in  Wilson  v.  Bea- 

per  Bronson,  J;  to  same  effect,   see  vans,  58  111.  232;  to  the  same  effect, 

Dauber  i'.  Blackney,  38  Barb.  (N.  Y.)  and  illustrating  this  subject,  see  Ash- 

432;  Pitts  V.  Congdon,  2  New  York,  ford  v.  Robinson,  8  Ired.  (Nor.  Car.) 

352.  114;  Stewart  v.  Malone,  5  Phila.  440; 

''Johnsons.  Gilbert,  4  Hill,  178,  per  Carpenter  v.   Wall,  4  Dev.   &   Batt 

Bronson,  J;  Mobile  &  G.  R.  R.  Co.  v.  (Nor.  Car.)  144;    Huntington  o.  Wel- 

Jones,  57  Ga.  198;  Nichols  v.  Allen,  lington,  12  Mich.  10;  Ardem  v.  Row- 

22  Minn.  283.  ney,  5  Esp.  254;   Smith  v.    Finch,  2 


gg  THE   STATUTE   OF   FRAUDS. 

the  same  general  iDrinciples  a  verbal  acceptance  or  promise  to  ac- 
cept a  bill  of  exchange  is  not  within  the  statute  when  the  pro- 
misor has  funds  of  the  drawer  in  his  hands  to  pay  it.*  It 
amounts  to  a  payment  of  his  own  debt,  and  it  makes  no  differ- 
ence wliether  he  pay  it  to  the  drawer  himself  or  to  a  creditor  of 
the  drawer  who  is  designated  by  the  bill  of  exchange. 

§  54.  When  promisor  previously  liable,  promise  not  within 
statute. — If  the  promisor  is  already  liable  for  the  payment  of  the 
debt,  his  promise  to  pay  it  if  a  third  person  does  not,  is  not  with- 
in the  statute.  This  is  but  another  application  of  the  principle 
that  a  promise  to  pay  the  promisor's  own  debt  is  not  within  the 
statute,  even  though  its  performance  may  discharge  the  debt  of 
another.  Thus  A,  through  the  agency  of  a  broker,  sold  a  parcel 
of  linseed  to  B,  who,  through  the  same  broker,  sold  it  at  an  in- 
creased price  to  C.  The  time  for  C  to  pay  the  price  was  to  arrive 
before  that  fixed  for  the  payment  by  B.  C  sent  his  clerk  to  the 
broker  for  the  delivery  order  for  the  seed,  and  the  broker  took 
him  to  A,  from  whom  the  clerk  obtained  the  order,  upon  the  faith 
of  a  promise  that  C  would  pay  A  for  the  seed.  It  was  held  that 
the  promise  was  not  within  the  statute.  The  court  said:  "  "We 
are  all  agreed  that  the  case  is  not  within  the  Statute  of  Frauds. 
The  law  upon  this  subject  is,  I  think,  correctly  stated  in  the  notes 
to  Forth  V.  Stanton,  1  Wms.  Saund.  211  e,  where  the  learned 
editor  thus  sums  up  the  result  of  the  authorities:  '  There  is  con- 
siderable difficulty  on  the  subject,  occasioned  perhaps  by  unguard- 
ed expressions  in  the  reports  of  the  different  cases,  but  the  fair 
result  seems  to  be  that  the  question  whether  each  particular  case 
comes  within  this  clause  of  the  statute  (s.  4)  or  not,  depends  not 
on  the  consideration  for  the  promise,  but  on  the  fact  of  the  origi- 

Scam.  (111.)  321;  Reed  v.  Holcomb,  31  205;  Orrell  v.  Coppock,  26  Law  Jour. 

Conn.  360;  Runde  v.  Runde,  59  111.  98;  Ch.  269;  Aiken  v.   Cheeseborougli,  1 

AUen  V.  Pryor,  3  A.  K.  Marsh,  (Ky.)  HUl,  Law  (So.  Car.)  172,  contra  Wood 

305;     Wait    V.    Wait,     28  Vt.  350;  v.  Wheelock,  25  Barb.  (N.  Y.)  625. 

Hackleman  V.  Miller,  4  Blackf.  (Ind.)  ^Pillans  v.    Van   Mierop,   3    Bnrr. 

322;  Rowland  v.  Rorke,  4  Jones  (Nor.  1663;  Townsley  v.  Sumrall,  2  Peters, 

Car.)  337;    Devlin  v.   Woodgate,   34  182;  Spaulding  «;.  Andrews,  48  Pa.  St. 

Barb.  (N.  Y.)  252;  Jones  v.  Palmer,  1  411;  Jones  v.  Council  Bluffs  Bank,  34 

Doug.  (Mich.)  379;  Cardell  v.  McNeil,  111.  313;  O'Donnell  v.  Smith,  2  E.  D. 

21  New  York,  336;  Gold  v.    Phillips,  Smith  (N.  Y.)  124;  Mason  v.  Dousay, 

10  Johns.  412;  Hodgson  v.  Anderson,  35  111.  424;  Van Reiinsdyck  v.  Kane,  1 

5  Dow  &  Ry.  735;  Id.  3  Barn  &  Cres.  Gallison  C.  C.  633;  Leonard  v.  Mason, 

842;  Stephens  v.   Squire,   5  Modern,  1  Wend.  522;  Grant  v.  Shaw,  16  Mass. 


NEW    CONSIDERATION.  69 

iial  party  remaining  liable,  coupled  with  tlie  absence  of  any  lia- 
Ijility  on  the  part  of  the  defendant  or  his  property,  except  'such 
as  arises  from  his  express  promise.'  I  quite  concur  in  that  view 
of  the  doctrine,  provided  the  proposition  is  considered  as  embra- 
cing the  qualilication  at  the  conclusion  of  the  passage;  for  though 
I  agree  that  the  consideration  alone  is  not  the  test,  but  that  the 
party  taking  upon  himself  the  obligation  upon  which  the  action 
is  brought,  makes  himself  responsible  for  the  debt  or  default  of 
another,  still  it  must  be  taken  with  tlie  qualification  stated  in  the 
note  above  cited,  viz:  an  absence  of  prior  liability  on  the  part  of 
the  defendant  or  his  property."  *  The  doctrine  here  announced 
in  terms,  that  in  order  to  bring  the  promise  within  the  statute, 
there  must  be  an  absence  ot  liability  on  the  part  of  the  promisor, 
except  such  as  arises  from  his  express  promise,  is  based  upon  the 
soundest  reason,  and  aflords  an  explanation  for  many  cases  which 
could  not  otherwise  be  sustained  upon  principle.  This  doctrine 
is  also  applicable  where  the  promise  is  to  pay  what  the  j^romisor 
was  previously  liable  for  jointly  with  others  only;  as  in  the  case 
of  a  j)artnership,  where  the  verbal  promise  of  one  partner  to  pay 
the  partnership  debt,  is  valid.^  But  a  promise  by  a  firm  to  pay 
the  individual  debt  of  one  partner;^  or  by  a  stockholder  of  a  cor- 
poration to  pay  its  debts,*  must  be  in  writing;  because  in  neither 
case  is  there  any  pre-existing  liability  on  the  part  of  the  promi- 
sor to  -pay. 

§55.      New  consideration  passing  betvreen  promisee  and  prom- 
isor, ■will  not  alone  take  promise  out  of  statute. — In  many  of  the 

341;  Stroliecker  v.   Cohen,   1  Spears,  bins,  28  Conn.  544;  Hoover  t'.  Morris, 

(So.  Car.)  349;  Nelson  V.  First  Nation-  3  Ohio,  56;  and  also  cases  heretofore 

al  Bank  of  Chicago,  48  lU.  36;  Shields  cited  on  other  branches  of  this  subject. 

V.  Middleton,  2  Cranch  C.  C.  205;  Pike  ^  Stephens  v.  Squire,  5  Modern,  205; 

V.  Irwin,  1  Sand.  (N.  Y.)  14.  Aikin  v.  Duren,  2  Nott&  McCord,  (So. 

1  Fitzgerald  v.  Dressier,  7  Com.  B.  Car.)  370;  Files  v.  McLeod,   14  Ala. 

(J.  Scott)  N.  S.  374,  per  Cockburn,  C.  611;    Howes  v.  Martin,   1  Esp.    162; 

J.     To  this  principle  may  be  referred  Rice  v.  Barry,  2  Cranch  C.  C.  447. 

WilUams  v   Leper,  2  Wils.  308;  Id.  3  » Taylor  v.  Hillyer,  3  Blackf.  (Ind.) 

Burr,  1886;  Bampton  r.  Paulin,  4Bmg.  433;  Wagnon  v.  Clay,  1  A.  K.  Marsh, 

264;  Thomas  r.  Williams,  10  Barn.  &  (Ky.)  257. 

Cress.  664;  Houlditch  v.  Milne,  3  Esp.  ''Trustees  of  Free  Schools  r.  Flint, 

86;    see,  also,  as  further  illustrating  13  Met.  (Mass.)  539;  Wy man  ?'.  Gray, 

this  point,  Macrory  v.  Scott,  5  Wels.,  7  Harris  &  Johns.  (Md.)  409;  Rogers 

Hurl.  &  Gor.  907;  Nelson  <;.  Boynton,  v.   Waters,    2    Gill    &    Johns.  (Md.) 

3  Met.  (Mass.)  396;  Chambers  v.  Rob-  64. 


70  THE    STATUTE    OF    FRAUDS. 

cases  wliich  have  held  a  verbal  promise  to  answer  for  another 
bindino-  when  the  original  debtor  also  remained  bound,  great 
stress  has  been  laid  upon  the  fact  that  the  promise  was  founded 
upon  a  new  consideration  moving  between  the  creditor  and  the 
promisor,  and  the  promise  has  been  decided  to  be  not  w^ithin  the 
statute  for  that  reason  alone.  In  a  celebrated  case,  often  cited  to 
sustain  this  position,  a  most  learned  judge'  said  that  "when  the 
promise  to  pay  the  debt  of  another  "  arose  "  out  of  some  new  and 
original  consideration  of  benefit  or  harm  moving  between  the 
newly  contracting  parties,"  the  promise  was  not  within  the  stat- 
ute. ]S^umerous  cases  have  been  decided  upon  the  authority  of 
this  statement  of  the  law;  and  it  has  been  given  as  a  reason  for  the 
decision  of  many  cases  which  may  well  rest  upon  other  grounds. 
The  proposition  of  the  learned  judge  was  not  necessary  to  a  decis- 
ion of  the  case  in  which  it  was  laid  down,  and,  as  stated  by  him, 
cannot  be  supported  on  principle,  nor  by  the  later  and  best  con- 
sidered authorities.  There  must  be  a  consideration  for  every 
contract  of  suretyship  or  guaranty,  and  to  hold  that  in  every  case 
where  the  consideration  moves  from  the  creditor  to  the  surety  or 
guarantor,  the  promise  is  not  within  the  statute,  would  be  to  repeal 
the  statute  altogether  in  a  very  large  class  of  cases.  If  such  were 
the  law,  the  verbal  promise  of  a  surety  or  guarantor  made  in  consid- 
eration of  the  payment  to  him  of  one  dollar  by  the  creditor, 
would  be  valid  if  the  promise  was  to  j)ay  a  still  subsisting  debt 
of  the  principal,  amounting  to  a  thousand  dollars,  or  any  greater 
sum.  When  the  consideration  passes  between  the  surety  or  guar- 
antor and  the  creditor,  the  promise  will  be  within  the  statute,  or 
not  according  to  circumstances,  but  there  must  be  some  other 
circumstance  besides  the  mere  passage  of  the  consideration  to 
take  the  case  out  of  the  statute.  In  determining  whether  any 
particular  case  is  within  or  without  the  statute,  the  true  question 
is  "What  is  the  promise?"  not  "  What  is  the  consideration?" 
An  able  court  has  said:  "We  believe  it  will  be  found  that  in  all 
the  cases  now  regarded  as  sound  where  it  has  been  held  that  a  pa- 
rol promise  to  pay  the  debt  of  another  is  binding,  the  promisor 
held  in  his  hands  funds,  securities,  or  property  of  the  debtor  de- 
voted to  the  payment  of  the  debt,  and  his  promise  to  pay  attaches 
upon  his  obligation  or  duty  growing  out  of  the  receipt  of  such 

'Kent,  C.J.,  (afterwards  Chancellor),  in  Leonard  v.  Vredenburgli,  8  Johns.  29. 


NEW    CONSIDERATION.  71 

fund.'"  In  another  case  in  whicli  this  question  was  involved,  the 
court  said:  "It  mmst  be  admitted  that  the  cases  respecting  the 
application  of  the  Statute  of  Frauds  are  greatly  confused  and 
irreconcilable  witli  each  other.  Upon  no  subject  perhaps  has 
there  been  more  diversity  of  judicial  decision.  The  vaUie  of  the 
statute  is  everywhere  admitted,  and  its  language  is  plain,  but  in 
the  supposed  justice  of  a  particular  case  a  court  has  often  lost 
sight  of  the  exact  rule  prescribed  by  the  legislature.  As  much 
ingenuity  has  been  expended  in  efforts  to  take  individual  cases 
out  of  the  statute,  as  was  formerly  devoted  to  avoiding  the  Stat- 
ute of  Limitations,  and  in  these  ingenious  efforts  principles  have 
been  asserted,  which,  if  sound,  practically  deny  all  effect  to  the 
expressed  will  of  the  legislature.  Happily,  there  are  glimmer- 
ings of  late  of  a  tendency  to  return  to  a  plainer  reading  of  the 
act,  and  to  give  to  it  a  construction  more  consonant  to  the  appar- 
ent mind  of  the  legislature.  *.  Without  attempting  any  exten- 
ded review  of  them  [the  authorities]  we  think  certain  principles 
may  be  safely  considered  as  settled,  or  if  not  settled,  sustained 
by  reason  and  the  autliority  of  the  best  considered  adjudications. 
It  is  not  true,  as  a  general  rule,  that  a  promise  to  pay  the  debt 
of  another  is  not  within  the  statute,  if  it  rests  upon  a  new  con- 
sideration passing  from  the  promisee  to  the  promisor.  A  new  con- 
sideration for  a  new  promise  is  indispensable  without  the  statute, 
and  if  a  new  consideration  is  all  that  is  needed  to  give  validity 
to  a  promise  to  pay  the  debt  of  another,  the  statute  amounts  to 
nothing;  nor  can  it  make  any  difference  that  the  new  considera- 
tion moves  from  the  promisee  to  the  promisor.  The  object  of 
the  statute  is  protection  against '  fraudulent  practices  commonly 
endeavored  to  be  upheld  by  perjury,'  and  to  these  all  suits  upon 
verbal  contracts  to  answer  for  another's  debt  or  default,  are 
equally  exposed,  no  matter  whence  the  consideration  of  the  con- 
tract proceeded,  or  to  whom  it  passed."* 

§  56.      Promise  not   within   statute   when    main    object  is    to 

^  See  elaborate  opinion  of  Poland,  C,  rison,  4  Bibb,   (Ky.)  76;  Lampson  v. 

J.,  in  which  he  sustains  the  views  ex-  Hobai-t,  28  Vt.  700;  Noyes  v.  Humph- 

pressed  in  the  text,  FuUam  V.  Adams,  reys,  11   Gratfc.    (Va.)  636;  Barber  v. 

37  Vt.  391.  Bucklin,  2  Denio,  45;    De  Colyar  on 

'^  Per  Strong  J.  in  Maule  v.  Buck-  Guarantees,  p.  141;  Kelsey  v.  Hibbs, 

nell,  50  Pa.  St.  39.     Kingsley  v.  Bal-  13  Ohio  St.   340.      See,  also,  on  this 

come,  4  Barb.  (N.  Y.)   131;  Cross   v.  subject.  Price  r.  Trusdell,  28  New  Jer. 

Richardson,  30  Vt.  647;  Floyd  v.  Har-  Eq.  (1  Stew.)  200. 


72  THE    STATUTE    OF   FRAUDS. 

benefit  promisor  himself  —  Observations. — Another  rule  upon 
\vliicli  many  decisions  have  been  founded,  is  tiiat  where  the  main 
or  inmiediiite  object  of  the  promisor  is  not  the  payment  ot  the 
debt  oi  another,  but  to  subserve  some  purpose  of  his  own,  the 
promise  is  not  within  the  statute,  although  its  performance  may 
have  the  effect  of  discharging  the  debt  of  another.  A  contrac- 
tor had  been  employed  by  a  railroad  company  to  build  certain 
bridges  on  its  line,  and  tlie  company  failing  to  make  its  pay- 
ments as  agreed,  the  contractor  refused  to  go  on.  The  defendant, 
who  was  a  large  stockholder  in  the  road,  had  leased  the  com- 
pany railroad  iron  to  the  value  of  sixty-eight  thousand  four 
hundred  dollars,  and  as  security  for  payment,  held  an  assignment 
of  the  proceeds  of  the  road  for  that  amount,  which  was  to  be  paid 
in  monthly  instalments.  If  the  bridges  were  not  completed 
there  would  be  no  proceeds,  and  the  company  could  not  pay  for 
the  iron.  The  defendant  verbally  promised  the  contractor  to  pay 
him  if  he  would  go  on  and  complete  the  bridges,  and  to  secure 
himself  from  loss  by  reason  of  such  promise,  the  defendant  took 
from  the  company,  securities  consisting  of  real  estate,  and  the 
company's  bonds,  secured  by  mortgage  on  the  road,  to  an  amount 
deemed  by  the  company  and  himself  sufficient  to  indemnify  him. 
The  company  was  insolvent:  Held,  the  defendant's  promise  was 
not  within  the  statute.^  The  court  said:  "  Whenever  the  main 
purpose  and  object  of  the  promisor  is  not  to  answer  for  another, 
but  to  subserve  some  pecuniary  or  business  purpose  of  his  own, 
involving  either  a  benefit  to  himself  or  damage  to  the  other  con- 
tracting party,  his  promise  is  not  within  the  statute,  although  it 
may  be  in  form  a  promise  to  pay  the  debt  ot  another,  and 
although  the  performance  of  it  may  incidentally  have  the  effect 
of  extinguishing  that  liability."  This  rule  is  but  another 
application  of  the  principle  that  a  verbal  promise  to  pay  the 
promisor's  own  debt,  is  valid,  even  though  its  performance  inci- 
dentally extinguishes  the  debt  of  a  third  person.  The  words 
of  the  statute  themselves,  taken  in  their  ordinary  meaning, 
afford    the     means  of  threading  the  labyrinth  ot  authority  on 

^  Emerson  v.  Slater,  22  Howard,  (U.  main  v.  Algar,   2  Car.  &  P.  249,  and 

S.)  28,  per  Cliftord,  J.    To  this  prin-  many  of  the  cases  already  recited  here- 

ciple  may  be  referred  the  cases    of  in  under  other  divisions  of  this  sub- 

CastUng  V.  Aubert,  2  East,  325;  El-  ject.     See,  also,  Lemmon  v.  Box,  20 

kins  V.  Heart,  Fitzg.  202;  Macroiy  v.  Tex.  329;  Clay  v.  Walton,  9  Cal.  328. 
Scott,  5  Wels.  Hurl.  &  Gor.  907;  Jar- 


DEL    CEEDERE    AGENT.  73 

this  subject,  and  in  every  new  case,  as  it  arises,  of  arriving 
at  a  proper  result.  The  object  of  the  statute  was  to  require  writ- 
ten evidence  when  the  promise  was  merely  to  answer  for  another, 
and  not  to  afford  a  pretext  by  which  the  promisor  might  avoid 
performing  his  own  obligations,  because  in  so  doing  he  inciden- 
tally discliarged  the  obligation  of  another.  The  mere  fact  alone, 
that  the  leading  object  of  the  promisor  is  a  benefit  to  himself, 
affords  a  very  unsatisfactory  test  for  determining,  whether  or  not, 
the  statute  applies  to  any  case,  because  it  is  often  difficult  to  dis- 
tinguish the  leading  object  from  other  objects,  and  the  object  a 
person  has  in  entering  into  a  contract  is  usually  immaterial,  as 
he  is  bound  by  his  contract  as  made.  IsTeither  is  the  nature  of 
the  consideration  a  sufficient  test.  The  true  test  is,  what  is  the 
substance  of  the  transaction  between  the  promisor  and  promisee? 
If  it  is  a  mere  promise  to  answer  for  another,  it  is  within  the 
statute.  If  it  is  a  promise  to  pay  the  promisor's  own  debt  in  a 
particular  way,  it  is  not  within  the  statute. 

§  57.  Promise  of  del  credere  agent  not  -within  statute. — 
The  agreement  of  a  del  credere  agent  to  pay  for  the  goods  sold 
throuo^h  his  ag-encv  is  not  within  the  Statute  of  Frauds,  Such 
an  agent  agrees  to  be  responsible  for  the  goods  so  sold.  By  some 
courts  he  has  been  said  to  be  a  surety  or  guarantor,  and  by  others 
an  original  and  j^rincipal  debtor.  Whatever  may  be  the  technical 
position  he  occupies,  it  is  settled  that  his  promise  is  not  within 
the  statute.^  The  reason  given  by  one  court ^  was  as  follows: 
"  The  other  and  only  remaining  point  is,  whether  the  defendants 
are  responsible  by  reason  of  their  charging  a  del  credere  coiavah- 
sion,  though  they  have  not  guarantied  by  writing,  signed  by 
themselves.  We  think  they  are.  Doubtless  if  they  had  for  a 
percentage  guarantied  the  debt  owing,  or  performance  of  the 
contract  by  the  vendee,  being  totally  unconnected  with  the  sale, 
they  would  not  be  liable  without  a  note  in  writing  signed  by 

iSwan  V.   Nesmitli,     7  Pick.   ';20;  Kay  &  Johns.  478,   remarks  of  Wood 

Bradley  v.   Richardson,  23  Vt.   720;  V.    C,    and     Morris  v.   Cleasby,     4 

Grove  V.   Dubois,    1    Term    R.  112;  Maule  &  Sel.  566. 

Sherwood    v.    iStone,  14  New  York,  « Per  Parke.  B.  in  Coutmier  r.  Has - 

267;  Mackenzie  v.  Scott,  6  Bro.  Pari.  tie,  8  Wels.  Hurl.  &  Gor.  40.  reversed 

Cas.  280:  MuUer  v.  Bohlens,  2  Wash.  on  appeal  to  Exch.  Ch.   Hastier.  Cou- 

C.  C.  378;    Thompson  v.   Perkins,  3  turier,  9  Wels.  Hurl.  &  Gor.  102;  but 

Mason,  232;  Houghton  v.  Matthews,  affirmed  by  the  House  of  Lords,  Cou- 

8  Bos.  &  Pul.  485.  See,  also,  on  this  turier  v.  Hastie,    5    House  of  Lords 

subject,     "Wickham    v.   Wickham,    2  Cas.  673. 


74  THE   STATUTE    OF    FKAUDS. 

them,  but  being  the  agents  to  negotiate  the  sale,  tlie  commission 
is  paid  in  respect  of  that  employment;  a  higher  reward  is  paid 
in  consideration  of  their  taking  greater  care  in  sales  to  their  custom- 
ers, and  prcchiding  all  question  whether  the  loss  arose  from  negli- 
gence or  not,  and  also  for  assuming  a  greater  share  of  responsibility 
than  other  agents,  namely,  responsibility  for  the  solvency  and 
performance  of  their  contracts  by  their  vendees.  This  is  the 
main  object  of  the  reward  being  given  to  them,  and  though  it 
may  terminate  in  a  liability  to  pay  the  debt  of  another,  that 
is  not  the  immediate  object  for  which  the  consideration  is  given." 
In  determining  this  same  question,  another  court '  said:  "  A  guar- 
anty, though  by  parol,  is  not  always  within  the  statute.  Perhaps, 
after  all,  it  may  not  be  strictly  correct  to  call  the  contract  of  the 
factor  a  guaranty  in  the  ordinary  sense  of  that  word.  The  im- 
plied promise  of  the  factor  is  merely  that  he  will  sell  to  persons 
in  good  credit  at  the  time;  and  in  order  to  charge  him  the  negli- 
gence must  be  shown.  He  takes  an  additional  commission,  how- 
ever, and  adds  to  his  obligation  that  he  will  make  no  sales  unless 
to  persons  absolutely  solvent;  in  legal  effect,  that  he  will  be  lia- 
ble for  the  loss  which  his  conduct  may  bring  upon  the  plaintiff, 
without  the  onus  of  proving  negligence.  The  merchant  holds 
the  goods,  and  will  not  part  with  them  to  the  factor  without  this 
extraordinary  stij^ulation,  and  a  commission  is  paid  to  him  for 
entering  into  it.  What  is  this,  after  all,  but  another  form  of  sell- 
ing the  goods?  Its  consequences  are  the  same  in  substance.  In- 
stead of  paying  cash,  the  factor  prefers  to  contract  a  debt,  or  du- 
ty, which  obliges  him  to  see  the  money  paid.  This  debt  or  duty 
is  his  own,  and  arises  from  an  adequate  consideration.  '^  Suppose 
a  factor  agrees  by  parol  to  sell  for  cash,  but  gives  a  credit.  His 
promise  is  virtually  that  he  will  pay  the  amount  of  the  debt  he 
thus  makes.  Yet  who  would  say  his  promise  is  within  the  stat- 
ute? The  amount  of  the  argument  for  the  defendant  would  seem 
to  be  that  an  agent  for  making  sales,  or,  indeed,  a  collecting  agent, 
cannot  by  parol  undertake  for  extraordinary  diligence,  because  he 
may  thus  have  the  debt  of  another  thrown  upon  him.  But  the 
answer  is,  that  all  such  contracts  have  an  immediate  respect  to 
his  own  duty  or  obligation.  The  debt  of  another  comes  in  inci- 
dentally as  a  measure  of  damages." 

'Wolff  V.  Koppel,  5  Hill,   458,  per      and  same  doctrine  enunciated,  WolfiF 
Cowen,  J. ;  affirmed  by  Court  of  Errors,      r.  Koppel,  2  Denio,  368. 


PKINCIPAL    MUST   BE   LIABLE    TO    PROMISEE.  75 

§  58.  Promise  not  virithin  statute  unless  made  to  party  to 
whom  principal  is  liable. — In  order  to  bring  the  promise  to  an- 
swer for  another  within  the  Statute  of  Frauds,  the  promise  must 
be  made  to  the  person  to  whom  tiie  other  is  ah'eadj,  or  is  there- 
after to  become,  liable.  A  verbal  promise  to  a  debtor  himself  to 
pay  or  furnish  him  the  means  of  paying  his  debt,  is  not  \vithin 
the  statute.'  In  a  leading  case  on  this  subject  the  plaintiff  w^as 
liable  to  one  Blackburn  on  a  note,  and  the  defendant,  upon  suffi- 
cient consideration,  promised  the  plaintiff  to  pay  the  note  to 
Blackburn:  Held,  the  promise  was  not  within  the  statute.^  The 
court  said:  "  If  the  promise  had  been  made  to  Blackburn,  doubt- 
less the  statute  would  have  applied.  It  would  then  have  been 
strictly  a  promise  to  answer  for  the  debt  of  another;  and 
the  argument  on  the  part  of  the  defendant  is,  that  it  is 
not  less  the  debt  of  another  because  the  promise  is  made  to 
that  other,  viz:  the  debtor,  and  not  to  the  creditor,  the  statute 
not  having,  in  terms,  stated  to  whom  the  promise  contemplated 
by  it,  is  to  be  made.  But  upon  consideration,  we  are  of  opinion 
that  the  statute  applies  only  to  promises  made  to  the  person  to 
whom  another  is  answerable."  A  owned  a  thrashing  machine, 
upon  which  he  owed  a  balance  to  B.  One  C  purchased  the 
machine  of  A,  and  paid  him  a  certain  sum,  and  verbally  promised 
A  to  pay  B  the  amount  A  owed  him  on  the  machine,  as  part 
of  the  purchase  money  to  be  paid  by  C  to  A.  Held,  the  promise 
M'as  not  within  the  statute.^  A  having  a  judgment  against  B, 
placed  a  warrant  for  his  arrest  in  the  hands  of  a  bailiff,  with  in- 
structions that  he  miffht  take  half  the  amount  in  satisfaction  of 
the  judgment.  The  bailiff  being  about  to  arrest  B,  one  C  ver- 
bally promised  the  bailiff  to  pay  him  half  the  judgment,  or  sur- 
render B  by  the  next  Saturday,  but  did  neither.      Held,  the 

'  Colt  V.  Root.  17  Mass.  229;  Thomas  76.    Preble  v.  Baldwin,  6  Cush,  549; 

V.  Cook,  8  Barn.  &  Cress.  728;  Morin  Fiske  v.  McGrefjory,  84  New  Hamp. 

V.  Martz,  13  Minn.  191;  Love's  Case,  1  414;  Piket).  Brown,  7  Cush.  133;  Soule 

Salk.    28;    Mersereau   v.    Lewis,   25  v.  Albee,  31  Vt.  142;  Alger  v.  Scoville, 

Wend.  243;    Howard  v.  Coshow,  33  1  Gray,  391;  Gregory  v.  Williams,  3 

Mo.  118;  Weld  V.  Nichols,  17  Pick.  Meriv.  582. 

538;    Pratt  v.   Humphrey,   22  Conn.  ^  per  Lord  Denman,  in  Eastwood  r. 

317;  Barber  v.  Bucklin,  2  Denio,  45;  Kenyon,  11  Adol.  &   Ell.   433;   Id.   3 

North  V.   Robinson,  1    Duvall   (Ky.)  PeiTy  &  Dav.  276. 

71;   Jones    v.   Hardesty,     10   GilL  &  » Grim  v.  Fitch,  53  Ind.  214. 
Johns.  404;  Aldrich  v.  Ames,  9  Gray, 


76  THE    STATUTE    OF    FRAUDS. 

promise  was  not  M-itliin  the  statute.  The  court  said:  "It  has  been 
distinctly  settled,  that  to  bring  the  promise  within  the  statute, 
the  promisee  must  be  the  original  creditor.  *  The  debts  are 
totally  distinct  debts,  as  well  as  the  debtor's."  '  In  another  case, 
deciding  the  same  thing  as  those  already  stated,  the  court  said: 
'■  The  statute  applies  only  to  promises  made  to  the  persons  to 
whom  another  is  already  or  is  to  become  answerable.  It  must  be 
a  promise  to  be  answerable  for  a  debt  of,  or  a  default  in,  some 
duty  by  that  other  person  towards  the  promisee."  " 

§  59.  False  representations  of  another's  credit  not  vrithin 
statute. — False  and  deceitful  verbal  representations  as  to  the  stand- 
ing and  responsibility  of  a  third  person,  are  not  within  the  Stat- 
ute of  Frauds.^  Such  representations  cannot,  with  any  regard 
for  the  ordinary  meaning  of  language,  be  held  a  "  special  proin- 
ise"  to  answer  for  another.  However  much  they  may  be  within 
the  mischief  of  the  statute,  they  are  clearly  not  within  its  lan- 
guage. In  the  leading  case  on  this  subject,  one  Freeman  "  false- 
ly, deceitfully  and  fraudulently"  asserted  and  affirmed,  orally,  that 
one  Falch  "  was  a  person  safely  to  be  trusted  and  given  credit 
to."  The  court  held,  upon  great  consideration,  that  Freeman  was 
liable  to  an  action  in  consequence  of  these  representations."  In 
discussing  and  approving  this  case,  another  court  said :  ^  "  The 
case  went,  not  upon  any  new  ground,  but  upon  the  application  of 
a  principle  of  natural  justice  long  recognized  in  the  law,  that 
fraud  or  deceit,  accompanied  with  damage,  is  a  good  cause  of  ac- 
tion. This  is  as  just  and  permanent  a  principle  as  any  in  our 
whole  jurisprudence.  The  onl}^  plausible  objection  to  it  is,  that 
in  its  application  to  this  case  it  comes  within  the  mischiefs  which, 
gave  rise  to  the  Statute  of  Frauds,  and  that  therefore  the  repre- 

'  Reader  v.   Kingham,  13  Com.  B.  (Conn.)  381;     Patten  v.  Gurney,    17 

(J.  Scott)  N.  S.  344,  per  Earle,  C.  J.  Mass.  182;  Russell  v.  Clark,  7  Crancli, 

TarkeB.  in  Hargreayes  v.  Parsons,  69;  Gallagher  v.  Brunei,  6  Cowen,  347; 

13  Mees.  &  Wels.  561.  Ewins  v.  Calhoun,  7  Vt.  79;  Weeks  v. 

^Eyrev.Dunsford,  1  East,  318;  Al-  Burton,   7  Vt.  67.    Lord  Eldon   was 

lenu.  Adington,  7  Wend.  9;  Haycraft  strongly  opposed  to  this  doctrine,  and 

V.  Creasy,  2  East,  92;  Warren  v.  Bar-  thought  it  not  good  law.     See  Evans 

ker,  2  Duvall,    (Ky.)  155;    Benton 't;.  v.  Bicknell,  6  Vesey,  Jr.  174. 

Pratt,  2  Wend.  885;  Tapp  v.  Lee,  3  *Pasley  v.  Freeman,  3  Term  R.  51. 

Bos.  &  Pul.  367;   Wise  tJ.  Wilcox,    1  » Upton  r.  Vail,   6  Johns.   181,  per 

Day,  (Conn.)  22;  Foster  v.  Charles,  6  Kent,  C.  J. 
Bing.  396;  Hart  v.  Tallmadge,  2  Day, 


FALSE    EEPKESENTATION   OF   ANOTHEe's    CREDIT.  T7 

sentation  oiiglit  to  be  in  writing.  But  this,  I  apprehend,  is  an 
objection  arising  from  policy  and  expediency,  for  it  is  certain 
tliat  the  Statute  of  Frauds,  as  it  now  stands,  has  nothing  to  do 
with  the  case."  A  statute  has  been  passed  in  England,  provi- 
ding that  no  action  shall  be  brought  to  charge  any  person  by 
reason  of  any  representations  concerning  the  credit,  ability,  etc., 
of  another,  unless  the  representations  are  in  writing;*  and  a  simi- 
lar statute  has  been  enacted  in  several  of  the  United  States. 
"When  the  verbal  representation  was  also  accompanied  by  a  verbal 
promise  to  pay  the  debt  of  the  third  party,  concerning  whom  the 
representation  was  made,  the  party  making  the  representation 
has  still  been  held  liable.  Thus,  the  representation  and  promise 
were  "  that  one  Leo  was  a  good  man,  and  might  be  trusted  to  any 
amount;  that  the  defendant  durst  be  bound  to  pay  for  the  said 
Leo;  and  that  if  Leo  did  not  pay  for  the  goods,  he  would."  It 
was  objected  that  the  injury  might  have  arisen  from  a  violation 
of  the  promise  to  pay,  and  that  the  action  could  not  be  main- 
tained because  of  the  Statute  of  Frauds,  but  the  defendant  was 
held  liable.'^  The  court  said:  "There  never  was  a  time  in  the 
English  law  when  an  action  might  not  have  been  maintained 
against  the  defendant  for  this  gross  fraud.  *         There  is  no 

proof  that  the  plaintiff  ever  considered  the  defendant  as  his  debtor, 
or  ever  called  upon  him  for  the  money,  or  relied  upon  his  prom- 
ise in  the  least  degree.  In  the  next  place,  we  must  suppose  every 
man  to  know  the  law,  and  if  the  plaintitf  was  acquainted  with  the 
law,  he  must  have  known  that  the  defendant's  promise  was  worth 
nothing,  and  could  have  giv^en  no  credit  to  him  upon  it.  He 
cannot  have  considered  it  in  any  other  light  than  as  a  mode  of 
expression  by  which  the  defendant  intended  more  strongly  to 
express  his  opinion  of  Leo's  circumstances." 

§  CO.  Promise  in  substance  to  pay  debt  of  another,  no 
matter  what  its  form,  is  within  statute. — When  the  promise  is 
not  in  form,  but  is  in  substance,  to  pay  the  debt  of  another,  it  is 

>  Ninth  Geo.  IV.  chap.  14,  §  6.     For  Whitney,  8  Allen,  207;  Huntington  v. 

decisions  on  this  subject,  see  Lyde  r.  Wellington,  12  Mich.  11.     See,   also, 

Barnard,  Tyrwh.  &  Gr.  250;  Tatton  v.  on  this  subject,  Browne  on  Frauds,  pp. 

Wade,  18  Com.  B.  370;  Haslock  v.  169-177. 

Fergusson,  7  Ad.  &  E11.86;  Norton  V.  ^Hamar  v.   Alexander,     5   Bos.    & 

Huxley,  13    Gray,   285;    Kimball  v.  Pul.  241,   per    Sir  James  Mansfield. 

Comstock,    14    Gray,  508;    Mann    v.  See,     also,    Thompson    v.    Bond,     1 

Blanchard,  2  Allen,  886;  McKinney  v.  Camp.  4. 


78  THE    STATUTE   OF   FRAUDS. 

witliin  the  statute.  Thus,  the  defendant  requested  the  plaintiff  to 
sell  a  third  person  goods,  and  promised  to  indorse  his  note  at  six 
months  for  the  price.  Held,  the  promise  was  within  the  stat- 
ute, and  could  not  be  enforced.^  The  court,  after  saying  that 
the  promise  was  to  become  the  third  person's  surety,  proceeded: 
"  To  say  then  that  this  is  not  in  effect  to  answer  for  their  debt, 
would  be  a  sacrifice  of  substance  to  sound.  It  would  be  devising 
a  formulary  by  which,  through  the  aid  of  a  perjured  witness,  a 
creditor  might  get  round  and  defraud  the  statute.  He  may  say 
'  You  did  not  promise  to  answer  the  debt  due  to  me  from  A,  but 
only  to  put  yourself  in  such  a  position  that  I  could  compel  you 
to  pay  it'  Pray  where  is  the  difference  except  in  words?  Ac- 
cording to  such  reasoning,  unless  you  recite  the  words  of  the 
statute  in  your  undertaking,  it  will  not  reach  the  case.  No  legis- 
lative provision  would  be  worth  anything  upon  such  a  construc- 
tion," In  another  case  the  plaintiff  had  contracted  to  supply 
goods  to  A,  to  be  paid  for  in  cash  on  each  delivery.  A  being 
desirous  of  obtaining  the  goods  on  credit,  the  defendant,  who  had 
an  interest  in  the  performance  of  the  work  upon  which  the  goods 
were  to  be  used,  promised  the  plaintiff  that  if  he  would  supply 
the  goods  to  A,  upon  a  month's  credit,  and  allow  him,  the  de- 
fendant, a  certain  per  cent,  upon  the  amount  of  the  invoice,  he 
would  pay  him,  the  plaintiff,  cash,  and  take  A's  bill  without  re- 
course. Held,  the  promise  was  within  the  statute.^  The  court 
said:  "  A  contract  to  give  a  guaranty,  is  required  to  be  in  writ- 
ing as  mucli  as  a  guaranty  itself.  ^  This  is  in  substance  an  en- 
gagement by  which  the  buyers  of  goods  are  not  to  be  exonerated, 
but  the  defendant  is  to  indemnify  the  seller  against  their  default." 
A  verbal  promise  to  procure  some  one  else  to  sign  a  guaranty  for 
certain  freight,  has  been  held  not  to  be  within  the  statute.^    There 

^  Per  Cowen,  J.  in  Carville  V.  Crane,  (Tenn.)  313;    Thomas  t'.   Welles,     1 

5  Hill,    483;  see,  also,    Gallagher  v.  Root  (Conn.)  57.  In  Fitch  t;.  Garclenier, 

Brunei,     6    Cowen,     346;    Taylor    v.  2  Albott's   Rep.   Omitted  Cas.  153  a 

Drake,  4  Strobh.  (So.  Car.)  431 ;  Pike  suit  was  pending,  which  one  of  the 

V.  Irwin,  1  Sandf.  (N.  Y.)  14;  Quin  parties  wished  to  compromise,  but  his 

V.  Hanford,  1  Hill,  82;   Wakefield  v.  attorney  promised,  if  he  would  go  on 

Greenhood,     29    Cal.    597;    but    see  to  make  no  charge  for  his  services  un- 

D'Wolf  r.  Rabaud,  1  Peters,  476.  less  he  was  successful.     Held,  this  was 

*Per  Pollock    C.  B.   in  Mallet  v.  not  a  collateral  undertaking  or  guaran- 

Bateman,  Law  Rep.  1  C  P.  163;  S.  C.  ty  of  collection,   and  need  not  be  in 

16,  J.  Scott  N.  S.  530;  to  similar  effect,  wiiting  to  bind  the  attorney  making  it. 

see    Martin    v.     England,    5     Yerg.  ^  Bygi^ngH    ^_     Beavan,     1     Bing. 


PEOMISE   TO    ANSWER   FOR   FUTURE    LIABILITY.  79 

the  promise  was  that  the  creditor  should  have,  not  the  promisor's, 
but  a  third  person's  guaranty  for  the  debt.  It  has  also  been  held, 
that  a  promise  by  one  who  owes  a  party  about  to  be  sued  by 
another,  that  he  will  not  pay  without  giving  notice  to  the  party 
about  to  sue,  so  that  he  may  have  an  opportunity  to  attach  the 
debt,  is  not  within  the  statute.'  The  same  thing  has  been  held 
where  one  who  receipted  for  attached  property  promised  that  it 
should  be  returned  upon  demand.*  In  these  two  last  cases  the 
promise  was  in  effect  to  turn  over  to  the  creditor  the  debtor's  own 
property,  and  not  that  of  the  promisor;  and  in  none  of  the  three 
last  mentioned  cases  was  the  promise  to  pay  the  debt,  and  in  case 
of  a  breach  the  debt  would  not  have  been  the  measure  of  dam- 
ages. 

§  61.  Promise  to  answer  for  future  liability  of  third  party  is 
within  the  statute. — If  the  future  primary  liability  of  a  third  per- 
son to  the  promisee  is  contemplated  as  the  foundation  of  the  prom- 
ise, then  tlie  promise  is  within  the  statute  precisely  the  same  as 
if  the  liability  had  existed  when  the  promise  was  made.  The  dis- 
tinction was  at  one  time  made,  that  if  there  was  no  existing  lia- 
bility on  the  part  of  the  third  person  when  the  promise  was  made, 
it  was  not  within  the  statute,  because  there  was  nothing  to  which 
it  was  collateral.^  This  distinction  has,  however,  long  been  over- 
ruled, and  the  law  settled  as  above  stated,^  Thus,  the  defendant 
and  A  came  to  the  plaintiif 's  warehouse  and  agreed  upon  a  par- 
cel of  goods  for  A,  and  the  defendant  said  he  would  guaranty  the 
payment.  A  afterwards  came  alone,  and  ordered  other  goods, 
when  the  plaintiff  sent  to  the  defendant,  and  asked  him  whether 
he  would  engage  for  A.  The  defendant  replied:  "  You  may  not 
only  ship  that  parcel,  but  one,  two  or  three  thousand  pounds 
more,  and  I  will  pay  you  if  he  does  not."  The  plaintiff,  relying 
on  this  promise,  afterwards  delivered  the  goods  to  A.  Held,  the 
promise  was  within  the  statute.'  The  court  said:  "Before  the 
case  of  Jones  v.  Cooper,  I  thought  there  was  a  solid  distinction 
between  an  undertaking  after  credit  given  and  an  original  under- 

N.  C.    103;    Id.  4    Moore    &    Scott,  "Jones    v.    Cooper,    1    Cowp.   227; 

622.  Matson  v.   Wharam,  2  Term  R.  80; 

'  Towne  v.  Grover,  9  Pick.  306.  Mallet  v.  Bateman,  Law  Rep.  1  C.  P. 

^  Marion  v.  Faxon,  20  Conn.  486.  163. 

^  Per  Lord  Mansfield,  in  Mowbray  v.  ^  Peckham  v.  Faria,  3  Douglas,  13, 

Cunningham,  Hilary  Term,  1773,  cited  per  Lord  Mansfield.     But  see  Whit- 

in  Jones  v.  Cooper,  1  Cowp,  227.  man  v.  Bryant,  49  Vt,  512. 


gQ  THE   STATUTE    OF   FKAUDS. 

talvini^  to  paj,  and  that  in  the  latter  case,  the  surety  being  tlie 
object  of  the  confidence,  was  not  within  the  statute;  but  in  Jones 
V.  Cooper,  the  court  was  of  opinion  tliat  wherever  a  man  is  to  bo 
called  upon  only  in  the  second  instance,  lie  is  within  the  statute; 
otherwise,  where  he  is  to  be  called  upon  in  the  first  instance."  In 
another  case,  the  defendant  verbally  authorized  the  plaintiff's,  who 
were  merchants,  to  let  a  third  person  have  a  certain  amount  of 
<roods,  and  promised  that  he  would  guaranty  the  payment.  The 
])laintifts  afterwards  delivered  the  goods  to  the  third  person,  and 
charo-ed  them  on  their  books  to  the  defendant,  for  the  third  per- 
son. Held,  the  promise  was  to  answer  for  the  debt  of  another, 
and  that  it  could  not  be  enforced  for  want  of  writing.' 

§  62.  Promise  within  statute  if  any  credit  given  to  third  per- 
son.— If  the  party  to  whom  goods  are  delivered,  or  for  whose 
benefit  a  service  is  performed,  incur  thereby  a  debt  so  tiiat  he  is 
liable  at  all,  then  the  undertaking  of  another,  in  aid  of  his  liabil- 
ity and  collateral  to  it,  must  be  in  writing  to  be  binding,  although 
the  collateral  undertaking  may  have  been  the  principal  induce- 
ment to  the  delivery  of  the  goods,  or  the  performance  of  the  ser- 
vice." A  landlord  to  whom  rent  was  due  gave  a  warrant  to  A  to 
distrain  upon  the  tenant.  The  defendant,  who  was  a  creditor  of 
the  landlord,  paid  the  broker  that  valued  the  goods,  and  put  the 
plaintiff  on  the  premises  to  keep  possession  of  the  goods,  and 
j)romised  to  pay  him  his  charges,  and  also  to  repay  him  certain 

'  Kinloch  v.  Brown,  2  Spear's  Law,  Chase  t>.  Day,    17  Johns.   114;    Brun- 

(So.  Car.)  284;  see,  to  same  effect  as  ton  r.  Dullens,  1  Foster  &  Fin.  450; 

text,  Cahill  v.  Bigelow,  18  Pick.  369;  Bresler  tJ.  Pendell,  12  Mich.  224;  Brady 

Capertont;.  Gray,  4  Yer^.(Tenn.)563;  v.  Sackrider,   1  Sandf.  (N.  Y.)  514; 

Ware  v.  Stephenson,  10  Leigh,  (Va.)  Hill  v.  Raymond,  3  Allen,  540;  Larson 

155;    Ex  parte    Williams,    4    Yerg.  v.  Wyman,   14  Wend.  246;   Elder  v. 

(Tenn.)  579;  Noyes  v.  Humphreys,  11  Warfield,  7  Harr  &  Johns.  (Md.)  391; 

Gratt.  (Va.)  636;  Tilleston  v.  Nettle-  Darlington  v.  McCunn,  2  E.  D.  Smith, 

ton,  6  Pick.  509;  Taylor  v.  Drake,  4  (N.  Y.)  411;  Conolly  r.  Kettlewell,  1 

Strobh.  (So.  Car.)  431;  Newell  v.  In-  GHl.  (Md.)  260;  Hanford  v.  Higgins, 

graham,  15  Vt.   422;  Huntington  v.  1  Bosw.  (N.  Y.)  441;  Bushee  i;.  Allen, 

Harvey,  4  Conn.  124;  Leland  v.  Crey-  31  Vt.  631;  Allen  v.  Scarff,  1  Hilton, 

on,  1  McCord,  (So.  Car.)  100;  Puckett  (N.  Y.)  209;  Steele  v.  Towne,  28  Vt. 

V.  Bates,  4  Ala.  390;  Peabody  v.  Har-  771;  Dixon  r.  Frazee,  1  E.  D.  Smith, 

vey,  4  Conn.  119.  (N.  Y.)  32;    Boykin  v.   Dohlonde,    1 

nValker P.Richards,  39 New Hamp.  Sel.  Cas.  Ala.  502.     See,  also,  as  to 

259;  Matson  v.  Wharam,  2  Term  R.  collateral  promise,  Glidden  v.  Child, 

80;  Cahill  v.  Bigelow,  18  Pick.  369;  122  Mass.  433. 
Anderson  v.  Hayman,  1 H.  Black,  120; 


WHETHER    PKOMISE    OEIGINAL    OR    COLLATERAL.  81 

sums  to  be  advanced  to  another.  Held,  the  promise  was  within 
the  statute,  on  the  ground  that  the  h\ndlord  was  responsible  as 
principal  for  the  necessary  exjienses  of  the  distress,  and  conse- 
quently the  promise  was  to  pay  the  debt  of  another.'  It  makes 
no  difference  that  the  promisee  relied  principally  upon  the  prom- 
isor; if  the  third  party  is  at  all  liable  to  him,  to  do  the  same 
thing,  the  promise  is  within  the  statute.  A  contractor  who  was 
building  a  liousefor  the  defendant,  employed  the  plaintiff  to  fur- 
nish the  stone,  but  failed  to  pay  him.  The  defendant  promised 
the  plaintiff  that  if  he  would  go  on  and  finish  the  work,  he  would 
pay  him;  but  the  contractor  was  not  discharged  from  his  liability 
to  the  plaintiff.  Held,  the  promise  was  within  the  statute."  So, 
where  the  plaintiff  had  contracted  to  deliver  a  quantity  of  rock 
to  a  third  person  at  an  agreed  price,  and  before  the  delivery  of  the 
same  the  plaintiff  made  known  to  the  defendant  his  determination 
not  to  deliver  the  rock  upon  the  credit  of  such  third  person,  and 
the  defendant  thereupon  said  to  the  plaintiff:  "  You  bring  the  rock, 
and  I  will  see  you  paid  for  it."  The  court  held  the  promise  was 
within  the  statute.^  In  these  cases,  and  indeed  in  most  of  the 
cases  on  this  subject,  the  promise  of  the  proposed  surety  or  guar- 
antor was  principally  relied  upon  by  the  promisee,  and  formed 
the  inducement  upon  whicli  he  acted.  When,  by  reason  of  the 
statute,  the  promisor  does  not  become  liable,  no  relief  can  be 
granted  against  him  in  equity,  although  he  is  proceeding  against 
the  j^romisee  at  law,  in  direct  violation  of  his  promise.*  When 
credit  is  given  to  two  jointly,  and  they  are  both  principals,  the 
statute  does  not  apply  to  their  engagement.'^ 

§  63.  When  promise  is  original  or  collateral,  cases  holding  it 
original. — It  is  apparent  that  the  question  "  to  whom  was  the 
credit  given?"  often  becomes  highly  important.  If  the  credit  is 
given  to  the  promisor  alone,  his  promise  need  not  be  in  waiting. 
But  if  credit  is  given  to  a  third  person,  to  any  extent,  and  the 
promise  is  collateral  to  the  liability  of  such  third  person,  it  must 
be  in  writing.  The  solution  of  this  question  is  frequently  a  mat- 
ter of  great  difficulty,  and  no  general  rule  which  will  serve  as  a 

'  Colraan  v.  Eyles,  2  Starkie,  62.  ^qj^^T^s  ^_  Blanchard,  15  Mich.  292; 

^  Gill  w.  Herrick,  111  Mass.  501.  Wainwright  v.    Straw,   15    Vt.   215; 

3  Doyle  V.  White,  26  Me.  341.  Hetfiekl    v.  Dow,   3  Dutch.    (N.   J.) 

*  Phelps   V.   Garrow,   8   Paige,  Ch.  440;    Ex  parte    Williams,    4    Yerg. 

822.  (Tenn.)  579. 

6 


82  THE    STATUTE   OF    FRAUDS. 

test,  can  be  given.  In  each  case,  the  "  expressions  used,  the  sit- 
nation  of  the  parties,  and  all  the  circnmstances  of  the  case,  should 
be  taken  into  consideration.'"  It  has  been  held  that  a  promise 
"  to  be  the  paymaster "  of  one  who  should  render  services  to 
another,  was  an  original  promise,  and  not  within  the  statute,  but 
that  if  the  words  were  "to  see  him  paid,"  it  was  collateral,  and 
within  the  statute.^  "Where  the  defendant  inquired  of  the  plain- 
tiff the  terms  on  which  he  would  let  C,  his  nephew,  have  news- 
papers to  sell,  and  on  being  told  the  terms,  said:  "  If  my  nephew 
calls  for  the  papers,  I  will  be  responsible  for  the  papers  he  shall 
take,"  it  was  held  that  this  was  an  original  and  absolute  contract 
on  the  part  of  the  defendant,  and  not  within  the  statute.^  An 
order  was:  "  Please  give  the  bearer,  Henry  Fink,  the  goods  which 
he  will  select,  not  exceeding  over  five  hundred  and  fifty  dollars, 
on  my  account."  Goods  having  been  delivered  to  Fink  on  the 
order,  it  was  held  that  the  writer  of  the  order  was  liable  as  prin- 
cipal, and  not  as  guarantor,*  If  goods  are  sold  on  the  credit  of 
the  promisor  alone,  his  promise  to  j)ay  for  them  need  not  be  in 
writing,  even  tliongh  they  are  delivered  to  a  third  person.^  In  an 
im^Dortant  case  on  this  subject,  the  plaintiff  had  been  employed 
by  a  local  board  of  health  to  construct  a  main  sewer.  ISTotice  had 
been  given  to  the  owners  of  certain  private  houses,  to  connect 
their  house  drains  with  this  sewer  within  a  certain  time.  The 
plaintiff  having  been  requested  by  the  overseer  to  make  these 
connections,  asked  who  would  pay  him  for  it,  when  the  defend- 
ant, who  was  chairman  of  the  board,  said:  "  Go  on,  Mountstephen, 
and  do  the  work,  and  I  will  see  you  paid,"  it  was  held  that,  tak- 
ing all  the  circumstances  into  consideration,  the  defendant  was 
liable  as  principal,  and  his  promise  was  not  within  the  stat- 
ute.^ The  court  said :  "  In  this  case,  seeing  that  the  parties 
knew  that  the  board  was  not  liable,  and  that  the  plaintiff  would 

^  Elder  v.  Warfield,  7  Harr.  &  Johns.  *  Neberroth  v.    Riegel,  71  Pa.   Sb. 

(Md.)  391.  280. 

*  Watkins  v.  Perkins,  1  Ld.  Raym.  ^  McCaffil   v.  Radcliff,  3  Robertson, 

224;  see,  also.  Skinner  v.  Conant,   2  (N.  Y.)  445. 

Vt.  453;  Thwaits  v.  Curl,  6  B.  Men.  « Mountstephen  v.    Lakeman,   Law 

(Ky.)  472;   Briggs  v.  Evans,  1  E.  D.  Rep.  7  Q.  B.  196,  per  Willes,  J.;  see. 

Smith,  (N.  Y.)  192;  Jones  v.  Cooper,  1  also.  Smith  v.   Rudhall,  8   Foster  & 

Cowp.227;  Bates  v.  Starr,  6  Ala.  697;  Fin.  143;   Jefferson  County  v.  Slagee, 

Matson  v.  Wharam,  2  Term  R.  SO.  66  Pa.  St.  202;  Edge  v.  Frost,  4  Dow. 

» Chase  v.  Day,  17  Johns.  114.  &  Ry.  243;  Hiltz  v.  Scully,  1  Cine.  554. 


WHETHER    PEOMISE    OEIGINAL    OR    COLLATERAL.  83 

not  go  on  nnless  lie  had  the  board  or  the  defendant  liable, 
and  did  not  care  to  have  the  defendant  liable  if  the  board  was 
liable,  the  facts  seem  to  exclude,  and  the  jury  might  well  find  that 
they  excluded,  the  notion  of  the  defendant  becoming  surety  for  a 
liability  either  past,  present  or  future,  upon  the  part  of  the  board; 
and  they  might  look  upon  the  defendant's  contract  as  a  contract 
to  pay,  whether  the  board  have  been,  or  shall  be,  liable  or  not.  X)o 
that  work  now,  and  you  shall  be  paid  for  that  work;  so  tliat  it  is 
a  case  of  principal  liability."  In  another  case,  the  promisor  in- 
troduced a  third  person  to  an  upholsterer,  and  asked  him  if  he 
had  any  objection  to  supplying  such  third  person  with  some  fur- 
niture, and  that  if  he  would,  he,  the  promisor,  "  would  be  answer- 
able," and  that  "  he  would  see  it  paid  at  the  end  of  six  months." 
Held,  this  was  an  original  undertaking,  as  principal,  on  the  part 
of  the  promisor.  The  court  said:  "Whether  the  contract  was 
original  or  collateral,  viz:  whether  it  was  binding  on  the  parties 
to  pay  in  the  first  instance  and  at  all  events,  or  only  binding  in 
case  the  other  does  not,  will  depend  on  the  contract  between  the 
parties.  I  think  that  the  expressions,  '  I  '11  be  answerable,'  and 
'  I  '11  see  you  paid,'  are  equivocal  expressions.  And  then  we  ought 
to  look  to  the  circumstances  to  see  what  the  contract  between  the 
parties  was.  ^'  It  was  left  to  the  jury  to  say  whether  he  was  the 
original  debtor,  and  they  found  that  he  was.  I  think  the  jury 
warranted  in  that  finding.  My  opinion  is  founded  substan- 
tially on  the  facts  of  the  case,  and  not  on  the  equivocal  exj^res- 
sions,  as  I  consider  the  words  capable  of  being  explained  by  oth- 
er circumstances."' 

§  64.  Whether  promise  original  or  collateral  is  question  of 
fact — Evidence — Cases  holding  promise  collateral. — The  man- 
ner in  which  the  transaction  is  entered  in  the  creditor's  books, 
often  has  a  controlling  influence  in  determining  the  question, 
"To  whom  M^as  the  credit  given"?     The  fact  that  the  charge  on 

1  Simpson    v.  Penton,  2  Cromp.  &  Burke,  4  Wis.  119;  Austen  v.  Baker, 

Mees.  430,   per  Bayley,   B.     See  fur-  12  Modern,  250;  Hazen  v.  Bearden,  4 

ther,  on  this  subject,  Payne  v.  Bald-  Sneed,  (Tenn.)  48;  Hatfield  v.  Dow,  3 

■win,   14  Barb.  (N.Y.)  570;  Dixon  v.  Dutch,  (N.  J.)  440;  Gordon  v.  Martin, 

Hatfield,  2  Bing.  439;  Smith  v.  Hyde,  Fitzgibbon,  302.     As  to  when  guaran- 

19  Vt.  54;  Clancy  v.  Piggott,  4  Nev.  ty  is  sufficiently  ambiguous  to  admit 

&  Mann,  496;  Sinclair  v.  Richardson,  of  parol  evidence  to  explain  it,    see 

12Vt.  33;  Birkmyrv.  Darnell,  1  Salk.  Goldshede  v.  Swan,  1  Wels.  Hurl.  & 

27;  Id.  2  Ld.  Raym.  1085;  Turton  v.  Gor.  154. 


84  TEE    STATUTE    OF   FRAUDS. 

the  creditor's  books  was  to  a  third  party  has  been  held  to  control 
an  absolute  promise  to  pay,  and  to  show  that  the  liability  of  the 
promisor  was  only  collateral.^  If  the  creditor  makes  out  a  bill 
to  the  third  party,  and  presents  it  to  him  in  the  first  instance, 
this  is  strong  evidence  to  show  that  the  credit  was  given  to  him, 
and  that  the  promisor  was  only  collaterally  liable.^  But  it  is  not 
conclusive  evidence  of  that  fact,  and  may  be  controlled  by  other 
circumstances.^  These  various  facts  are  matters  of  evidence, 
tending  more  or  less  to  show  to  whom  the  credit  was  given,  and 
will  be  received  against  the  plaintiff  to  establish  that  the  credit 
was  given  to  a  third  person,  but  they  are  not  evidence  in  favor  of 
the  plaintiff  to  charge  the  defendant,  for  that  would  be  to  permit 
the  plaintiff  to  manufacture  evidence  for  himself.'*  An  instance 
where  the  promisor  was  held  only  collaterally  liable,  and  nut 
bound  without  writing,  was  as  follows:  A  first  lieutenant  in  the 
navy,  serving  on  board  a  ship,  requested  the  plaintiff,  a  tailor  and 
slopseller,  to  supply  the  crew  of  the  ship  with  clothing,  and  at 
the  same  time  said:  "  I  will  see  you  paid  at  the  pay -table;  are  you 
satisfied"  ?  The  plaintiff  replied,  "  Perfectly  so."  The  clothing  was 
delivered  on  board  the  ship,  and  the  lieutenant  compelled  sev- 
eral of  the  sailors  who  did  not  want  clothes  to  take  them.  The 
court  thought  the  slopseller  relied  upon  the  power  of  the  lieu- 
tenant to  stop  the  money  out  of  the  sailors'  pay,  and  not  upon 
his  personal  liability,  and  viewed  as  a  controlling  circumstance 
that  the  amount  due  for  the  clothing  was  so  large  that  it  could 
not  have  been  expected  that  the  lieutenant  would  be  able  to 
liquidate  it  out  of  his  pay.^  So  where  tlie  promisor,  upon  being 
asked  to  become  responsible  for  goods  to  be  furnished  a  third 
person,  replied:  "You  may  send  them,  and  I'll  take  care  that 
they  are  paid  for  at  the  time,"  it  was  held  that  under  the  circum- 

^  Anderson  v.  Hyman,  1  H.  Black,  Pennell  v.  Pentz,  4  E.  D.  Smith,  (N. 

120;  Matson  v.  Wharam,  2  Term,  80.  Y.)  639;  Larson  v.  Wyman,  14  Wend. 

On  same  subject  see  Conolly  v.  Kettle-  246. 

well,  1  Gill,  (Md.)  260;  Leland  ?;.  Crey-  *  Mountsteplien  v.  Lakeman,  La-w- 
on. 1  McCord,  (So.  Car.)  100;  Dixon  Rep.  7  Q.  B.  196. 
f.  Frazee,  1  E.  D.  Smith,  (N.  Y.)32.  ■'Cutler  v.  Hinton,  6  Rand.  (Va.) 
The  fact  that  a  certain  person  is  charg--  509;  Walker  v.  Richards,  41  New 
cd  on  the  plaintiff's  book  with  goods,  Hamp.  388;  Noyes  v.  Humphreys,  11 
is  not  conclusive  evidence  that  the  Gratt.  (Va.)  636;  Kinloch  v.  Brown,  1 
credit  was  given  to  him.  Swift  v.  Rich,  (So.  Car.)  223. 
Pierce,  13  Allen,  136.  6  g;eate  v.  Temple,   1   Bos.  &  Pul. 

"  Storr  V.  Scott,  6  Car  &  Payne,  241 ;  158. 


VERBAL    SUBSEQUENT    PROMISE    AND    STATUTE    OF    LIMITATIONS.  85 

stances  lie  was  only  collaterally  liable,  and  not  bound  unless  his 
promise  was  in  writing.'  In  another  case,  the  plaintiff,  an  inn- 
keeper, had  furnished  a  dinner  for  a  public  celebration,  under  the 
direction  of  a  committee  of  which  the  defendant  was  a  member. 
It  was  the  understanding  that  every  person  should  pay  for  his 
own  dinner.  The  defendant  was  captain  of  a  military  company 
which  took  dinner  upon  that  occasion.  While  the  servants  of 
the  plaintiff  were  collecting  the  pay,  the  defendant  told  them 
they  need  not  call  upon  the  members  of  the  military  company, 
as  he  would  be  responsible  for  them.  Held,  the  promise  was 
collateral,  and  within  the  Statute  of  Frauds.*  From  the  exam- 
ples which  have  been  given,  it  is  clear  that  the  words  made  use 
of  by  the  parties  cannot  alone  be  relied  upon  to  show  to  whom 
the  credit  was  given.  It  is  a  question  of  fact  to  be  found  by  the 
jury  in  each  particular  case,  and  in  its  determination,  not  only 
the  language  made  use  of,  but  also  the  situation  and  surroundings 
of  the  parties,  and  every  other  feet  and  circumstance  bearing 
ujDon  the  question  should  be  taken  into  consideration. 

§  G5.  If  original  promise  in  writing,  verbal  subsequent  prom- 
ise takes  case  out  of  statute  of  limitations — -Verbal  guaranty 
sufficient  to  support  verbal  account  stated. — If  the  Statute  of 
Frauds  has  once  been  satisfied  by  writing,  a  new  verbal  promise 
will  be  sufiicient  to  take  the  case  out  of  the  Statute  of  Limitations. 
Thus  the  defendant,  having  entered  into  a  guaranty  in  writing, 
and  become  liable  upon  it  more  than  six  years  before  the  com- 
mencement of  the  suit,  verbally  jjromised,  within  six  years,  that 
the  matter  should  be  arranged:  Held,  he  was  liable.  The  Stat- 
ute of  Frauds  was  satisfied  by  the  guaranty  having  been  origi- 
nally in  writing.  In  order  to  take  a  case  out  of  the  Statute  of 
Limitations,  the  new  promise  need  not  be  in  writing.  The  two 
statutes,  the  one  requiring  a  writing,  and  the  other  not,  should 
not  be  confounded."  It  has  been  held  that  if  a  person  who  has 
verbally  guarantied  the  price  of  goods  sold,  afterwards  verbally 
promise  to  pay  for  them,  he  is  liable  on  an  account  stated.  Thus 
the  defendant  verbally  undertook  to  see  the  plaintiff  paid  for 
goods  supj^lied  by  him  to  A,  at  the  defendant's  request.  After 
the  goods  had  been  suj)plied,  and  A  had  made  default  in  pay- 
ment, the  defendant  verbally  acknowledged  his  liability  under 

*  Kains  v.  Story,  3  Car.  &  Payne,  130.  ^  Gibbons  v.  McCasland,  1  Bam.  & 

2  Tileston  v.  Nettleton,  6  Pick.  509.       AkI.  690. 


80  THE   STATUTE    OF    FKAUDS. 

the  guaranty,  and  promised  to  pay  the  phiintiff  the  price  of  tlie 
goods.  The  court  said,  that  while  tlie  statement  of  an  account 
and  promise  to  pay  could  give  no  cause  of  action  if  the  obligation 
on  which  it  was  founded  never  could  have  been  enforced  at  law; 
yet  here,  there  was  a  clear  legal  liability  under  the  guaranty  which 
the  Statute  of  Frauds  did  not  vacate  or  annul,  but  i-endered  inca- 
pable of  being  enforced  for  want  of  legal  evidence,  and  it  was 
sufficient,  under  the  authorities,  to  support  a  statement  of  account.^ 
^  G6.  The  form  of  the  writing. — The  statute  proceeds  "un- 
less the  agreement  or  some  memorandum  or  note  thereof  shall 
be  in  writing."  From  the  use  of  the  words  "some  memorandum 
or  note  thereof,"  the  design  seems  to  have  been  to  dispense  with 
formalities  in  the  writing  required.  The  agreement,  memoran- 
dum or  note,  must  substantially  express  the  real  transaction,  but 
the  form  in  which  it  is  expressed,  is  wholly  immaterial.  It  may 
be  in  the  form  of  a  letter  ^  of  a  receipt  ^  of  an  order  ^  of  the  re- 
turn of  a  sherifl'  upon  an  execution  ^  of  a  vote  of  a  corporation 
entered  on  its  books  ^  or  in  any  other  form  provided  it  expresses 
the  substance  of  the  transaction.  It  is  not  necessary  that  it 
should  consist  of  a  single  paper.  Several  letters  or  j^apers  which, 
on  their  face  refer  to  each  other,  may  be  taken  together  to  make 
a  complete  agreement,  note  or  memorandum.^  But  it  is  well 
settled,  that  in  order  that  the  several  papers  may  be  read  togeth- 
er, they  must  on  their  face  refer  to  each  other,  and  that  their 
mutual  relation  cannot  be  shown  by  parol  evidence.^     There  are, 

'Wilson  V.  Marshall,  15  Irish  Com.  ^  Tufts  v.  Plymouth  Gold  Mining  Co. 

Law  Rep.  466.  14  Allen,    407;    Chase  v.   Lowell,   7 

^Saundersen  v.  Jackson,  2  Bos.  &  Gray,  33. 

Pul.  238:  Foster  v.  Hale,    3  Vesey,  Jr.  '  Jackson  v.  Lowe,  1  Bing.  9;  Allen 

696;  Western  v.  Russell,  3  Vesey  &  v.   Bennet,    3    Taunt.   169;    Jones  v. 

Bea.  187;  Allen  v.  Bennet,  3  Taunt.  Post,  6  Cal.  102;  Owen  v.  Thomas,  3 

169;    Brettel  v.   WHliams,     4  Wels.  Myl.  &  Keen,  353;  Simons  v.  Steele,  36 

Hurl.  &  Gor.  623.  New  Hamp.  73;  Huddleston  v.  Bris- 

2Barickmanr.Kuykendall,6Blackf.  coe,    11    Vesey,    683;    Salmon    Falls 

(Ind.)21;  Ellis  v.   Deadman,  4  Bibb  Manf.   Co.   v.   Goddard,  14  How.  (U. 

(Ky-)  466.  S.)  446;  Wilson  Sewing  Machine  Co. 

*  Lerned  «.  Wannemacher,  9  Allen,  v.  Schnell,  20  Minn.  40;  Learned  v. 

41^-  Wannemacher,    9  Allen,  412;    Tall- 

*Nicholt\  Ridley,  5  Yerg.  (Tenn.)  man  v.  Franklin,  14  New  York,  584; 

63;  Barney  v.   Patterson,  6  Harr.   &  Chapman   v.    Bluck,     5    Scott,    515; 

Johns.  (Md.)  182;  Fife  v.  Gadsden,  2  Parkhurst  v.  Van  Cortland,  14  Johns. 

Rich  (So.  Car.)  373;  Hanson  r.  Barnes,  15. 

3  Gill  &  Johns.  (Md.)  359.  « Jacob  v.  Kii-k,  2  Moody  &  Rob. 


WHOLE    PEOMISE    MUST   BE    IN   WKITING. 


87 


however,  a  few  cases  wliicli  seem  to  countenance  a  contrary  doc- 
trine/ A  writing  which  is  signed  by  the  party  to  be  charged, 
may  be  read  together  with  one  which  is  not  signed.^  If,  when 
all  the  papers  which  refer  each  other  are  read  together,  the  terms 
of  the  contract  are  doubtful,  they  are  not  sufficient  to  satisfy  the 
statute/  The  agreement  note  or  memorandum  may  be  written 
with  ink  or  pencil,  or  may  be  printed  or  stamped,*  and  it  may 
be  executed  at  tlie  time  the  contract  is  made,  or  at  any  subse- 
quent time  before  the  suit  is  brought/ 

§  67.  Tlie  whole  promise  must  appear  from  the  ■writing. — 
Whatever  the  form  of  the  wriiing  may  be,  and  whether  it  consist 
of  one  or  more  parts,  all  the  essential  terms  of  the  contract  (un- 
less, perhaps,  tlie  consideration,)  must  appear  from  it,  and  parol 
evidence  cannot  be  introduced  to  aid  it."  Thus,  in  a  letter  writ- 
ten by  the  defendant  to  the  plaintiflP,  relating  to  a  proposed  mort- 
gage, but  which  did  not  itself  say  anything  about  the  mortgage, 
the  following  words  were  used:  "  I  will  take  any  responsibility 
myself   respecting  it,    should    there  be  any."      Held,   the   de- 


221;  Clinan  v.  Cooke,  1  Schoales  & 
Lefroy,  22;  Moale  v.  Buchanan,  11  Gill 
&  Johns.  (Md.)  314;  Wiley  v.  Roberts, 
27  Mo.  388;  Morton  v.  Dean,  13  Met. 
(Mass.)  385;  Boardman  v.  Spooner,  13 
Allen,  353;  Freeport  v.  Bartol,  3 
Greenl.  (Me.)  340;  IS'ichols  v.  Johnson, 
10  ('onn.  192;  Abeel  v.  Radcliff,  13 
Johns.  297;  Ide  v.  Stanton,  15  Vt. 
685;  O'Donnell  v.  Leeman,  43  Me, 
158;  Adams  v.  McMillan,  7  Port. 
(Ala.)  73;  Blair  v.  Snodgrass,  1  Sneed 
(Tenn.)  1;  Boydell  ij.  Drummond,  11 
East,  142;  Wilkinson  r.  Evans,  Law- 
Rep.  1  C.  P.  407. 

'Allen  r.  Bennet,  3  Taunt.  169; 
Salmon  Falls  Manf.  Co.  v.  Goddard, 
14  How.  (U.  S.)  446.  See,  also.  Bird 
V.  Blosee,  2  Vent.  361;  Johnson  v. 
Dodgson,  2  Mees.  &  Wels.  653. 

2  De  Beil  v.  Thomson,  3  Beav.  469; 
Gale  V.  Nixon,  6  Cow.  (N.  Y.)  445; 
Coles  V.  Trecothick,  9  Vesey,  234; 
Dodge  V.  Van  Lear,  5  Cranch  (C.  C.) 
278;  Western  v.  Russell,  3  Vesey  & 
Bea,  187;  Toomer  t'.  Dawson,    Cheves 


(So.  Car.)  68;  Saunderson  v.  Jackson, 
3  Esp.  180. 

*Brodie  v.  St.  Paul,  1  Vesey,  .Tr. 
326;  Boydell  v.  Drummond,  11  East, 
142. 

*  Draper  v.  Pattani,  2  Spears  (So. 
Car.)  292;  Schneider  t'.Norris,  2  Maule 
&  Sel.  286:  Vielie  v.  Osgood,  8  Barb. 
(N.  Y.)  130;  Saunderson  v.  Jackson,  2 
Bos.  &  Pul.  238;  Jacob  v.  Kirk,  2 
Moody  &  Rob.  221;  M'Dowell  v. 
Chambers,  1  Strobh.  Eq.  (So.  Car.) 
347;  Geary  r.  Physic,  5  Barn.  &  Cres. 
234;  Clason  v.  Bailey,  14  Johns.  484; 
Pitts  V.  Beckett,  13  Mees.  &  Wels.  743. 

*  Williams  ?'.  Bacon,  2  Gray,  387; 
Sievewright  v.  Archibald,  17  Ad.  & 
Ell.  N.  S.  103.  As  to  the  matters 
treated  of  in  this  section,  see,  at  great- 
er length,  Browne  on  Frauds,  Chap. 
17. 

6  Steams  v.  Hall,  9  Cush.  31 ;  Hall  v. 
Soule,  11  Mich.  494;  Bryan  v.  Hunt,  4 
Sneed,  543;  Whittier  v.  Dana,  10  Al- 
len, 326;  Cummiiigs  v.  Arnold,  3  Met. 
(Mass.)  486. 


88  TUE    STATUTE    OF   FRAUDS. 

fendanfc  was  not  bound.'  The  court  said  tlic  whole  promise 
must  appear  from  the  writing,  and  proceeded:  "The  letter,  if 
read  bj  itself,  without  reference  to  any  previous  conversations, 
would  be  a  promise  to  be  responsible  for  any  sum  of  money,  how- 
ever large,  at  any  rate  of  interest,  secured  by  any  kind  of  mort- 
gage, on  any  land,  with  any  title.  That,  however,  would  be  an 
unreasonable  construction,  and  is  not  its  true  meaning;  it  evi- 
dently refei'S  to  previous  conversations,  in  which  these  particulars 
arc  supplied.  The  whole  promise,  therefore,  is  not  in  writing,  as 
the  statute  requires  that  it  should  be."  So,  where  under  certain 
shipping  articles  of  two  seamen,  and  under  the  word  "  sureties," 
a  party  signed  his  name,  it  was  held  he  was  not  liable;  because, 
while  it  appeared  that  he  was  a  surety,  it  did  not  appear  w^hat  his 
agreement  was,  nor  for  what  he  became  surety."  The  court  said: 
"  The  memorandum  ought  to  state  substantially  what  the  under- 
taking of  the  surety  is,"  The  writing  must  identify,  with  reasona- 
ble certainty,  both  the  contracting  parties,  but  only  the  party  sought 
to  be  charged  need  sign  it.^  Thus  the  defendant  signed,  and  handed 
to  T  the  following  document:  "  Sir,  I  beg  to  inform  you  that  I  shall 
see  you  j)aid  the  sum  of  800?.  for  the  ensuing  building  which  you 
undertake  to  build  for  T."  He  intended  it  to  be  handed  by  T  as 
a  guaranty  to  J,  who  was  then  negotiating  with  T  to  erect  for 
him  the  building  referred  to.  T  having  agreed  with  the  plaintiff 
instead  of  J  that  the  plaintiff  should  erect  the  building,  deliv- 
ered the  document  to  him  without  the  defendant's  kiiowledge  or 
authority.  The  defendant  afterward  heard  of  and  ratified  this 
delivery.  Held,  the  defendant  was  not  liable,  because  the  writing 
did  not  contain  the  name  of  the  person  for  whom  it  was  intend- 
ed. The  court  said:  "It  is  essential  to  the  validity  of  any  such 
agreement,  or  memorandum  thereof,  that  it  should  contain  the 
names  of  both  parties  to  the  agreement.  It  is  true  that  there  is 
no  necessity  that  both  parties  should  sign  it.  *  But  it  must 
still  contain  all  the  essentials  of  an  aijreement,  and  therefore 

'  Holmes  v.  Mitchell,  7  J.  Scott,  (N.  Hamp.  157;    Farwell  r.  Lowther,    18 

S.)  361,  per  Williams,  J.  111.  252;  Nichols  v.  Johnson,  10  Conn. 

*Docl<,'e  V.  Lean,  13  Johns.  508.  192;  Wheeler  v.  Collier,  Moo,  &  Mai. 

^Champion  v.  riummer,  1   Bos.  &  123;  Webster  v.  Ela,  5  New  Hamp. 

Pul.fN.R.)  252;  Waterman  ?'.  Meigs,  540;  Allen  v.  Bennet,  3  Taunt.  169; 

4  Cush.  497;  Jacob  v.  Kirk,  2  Moody  Sheid  v.  Stamps,  2  Sneed  (Tenn.)  172. 
&  Rob.  221 ;  Sherburne  v.  Shaw,  1  New 


WHOLE    TKOMISE    MUST    BE    IN    WIIITI:NG.  89 

inter  alia  tlie  names  of  both  parties.  ^'  In  this  very  case,  sup- 
posing the  guaranty  to  be  valid,  it  might  have  been  put  into  the 
hands  of  some  ^^erson  for  whom  the  defendant  never  intended  it, 
and  an  attempt  might  have  been  made  on  the  one  hand  to  enforce, 
and  on  the  other  to  resist  it,  by  parol  evidence  as  to  who  ^7as 
the  person  really  intended.'"  If  it  apj^ears  from  the  writing, 
with  reasonable  certainty,  for  whom  it  is  intended,  it  is  sufficient. 
The  payee  of  a  promissory  note,  payable  to  bearer,  signed  the 
following  guaranty  on  its  back:  "  In  consideration  of  *  I  here- 
by guaranty  the  payment  of  the  witliin  note,"  The  court  said  a 
guaranty  must  indicate  the  person  for  whom  it  was  intended, 
either  by  name,  or  as  one  of  a  class,  and  as  the  guaranty  referred 
to  the  note,  it  should  be  read  with  it,  and  it  was  therefore  payable 
to  the  bearer,  whoever  he  might  be,  and  was  valid.^  With  refer- 
ence to  a  general  letter  of  credit,  it  has  been  said  that  it  "  is  ad- 
dressed to  any  and  every  person,  and  therefore  gives  to  any  per- 
son to  whom  it  may  be  shown,  authority  to  advance  upon  its 
credit.  A  privity  of  contract  springs  up  between  him  and  the 
drawer  of  the  letter,  and  it  becomes,  in  legal  effect,  the  same  as 
if  addressed  to  him  by  name."^  In  such  case  the  writer  of  the 
letter  is  liable  to  the  party  making  the  advances.  It  has  also 
been  held  that  the  mere  fact  that  the  name  of  the  plaintiff  ap- 
pears in  the  writing  is  not  sufficient,  unless  such  name  also  ap- 
pears from  the  writing  to  be  that  of  the  promisee,  or  party  to 
whom  the  defendant  is  liable.*  The  subject  matter  of  the  con- 
tract must  appear  from  the  writing,  but  it  may  be  expressed  in 
general  terms,  and  parol  evidence  is  admissible  to  identify  it.'* 

1  Williams  v.   Lake,  2  Ell.   &  Ell.  12  Mass.  154;  Birckhead  v.  Brown,  5 

349,  per  Cockburn,  C.  J.     As  to  the  Hill.   634;     Carnegie  v.   Morrison,   2 

matters  treated  of  in  this  section,  see  Met.  Mass.  381. 
more  fully,  Brown  on  Frauds,  Chap.  18.  *  Bailey  v.  Offden,  3  Johns.  399;  Van- 

^  Palmer  ??.  Baker,  23  Up.  Can.  C.  P.  derbergh  v.  Vandenbergh,  Law  Rep. 

R.  302;  to  the  same  general  effect,  see  1  Exch.  316. 

Thomas  v.  Dodge,  8  Mich.  51;  Nevius  ^Bateman  v.  Phillips,  15  East,  272; 

V.   Bank  of  Lansiugburgh,  10  Mich.  Sale  v.  Darragh,  2  Hilton,  (N.  Y.)  184; 

547.  Hall  V.  Soule,  11  Mich.  494;  Nichols 

^ Union  Bank  v.   Costers'   Exrs.    3  tJ.  Johnson,  10  Conn.  198;  Atwood  r. 

New  York,  203,  per  Pratt,  J.     Hold-  Cobb,  16  Pick.  227;  Hurley  v.  Brown, 

ing  to    same  effect,  see  Laurason  v.  98  Mass.  545;  McMun-ayt;.  Spicer,  Law 

Mason,  3  Cranch,  492;  Russell  v.  Wig-  R.  5  Eq.  527;  Baumann  v.  James,  Law 

gins,   2  Story  Rep.    214;    Adams    v.  R.  3  Ch.  App.  508;  Horsey?;.  Graham, 

Jones,  12  Peters,  207;  Duval  v.  Trask,  Law  R.  5  Com.  P.  9. 


90  THE    STATUTE    OF    FKAUDS. 

§  GS.  Whether  the  consideration  must  appear  from  the  writ- 
ing.— Xlie  common  law  required,  as  necessary  to  the  validity  of 
every  contract  not  under  seal,  that  it  be  supported  by  a  sufficient 
consideration.  It. was  just  as  necessary  that  there  should  be  a 
consideration  for  the  contract  to  pay  the  debt  of  another,  alter,  as 
before,  the  23assage  of  the  Statute  of  Frauds/  The  statute  did  not 
dispense  with  anything  which  was  before  essential  to  the  validity 
of  a  contract;  on  the  contrary,  it  added  something  in  the  case  of 
a  promise  to  pay  the  debt  of  another,  by  requiring  it  to  be  in 
■wi'iting,  when  before  no  writing  was  necessary.  Under  the  por- 
tion of  the  statute  now  under  consideration,  an  important  ques- 
tion has  arisen,  which  has  been  the  occasion  of  great  contrariety 
of  decision ;  the  question  being,  whetiier  or  not  it  is  necessary 
that  the  agreement,  or  memorandum,  or  note  thereof,  need  express 
the  consideration  for  the  promise  as  well  as  the  promise  itself. 
It  was  firmly  settled  by  the  English  courts  that  the  writing 
must  express  the  consideration  for  the  promise,"  when  the  Mercan- 
tile Law  Amendment  Act  was  passed.^  Among  other  things  this 
act  provides  that  "  no  special  promise  to  be  made  by  any  person 
after  the  passing  of  this  act  to  be  answerable  for  the  debt,  default 
or  miscarriage  of  another  person,  being  in  writing  and  signed  by 
the  party  to  be  charged  therewith,  or  by  some  other  person  by 
him  thereunto  lawfully  authorized,  shall  be  deemed  invalid  to 
support  an  action,  suit  or  other  proceeding,  to  charge  the  person 
by  whom  such  promise  shall  have  been  made,  by  reason  only  that 

^Barrell  v.  Tmssell,  4  Taunt.  117;  297.     The  question  was  ajzain  directly 

Leonard  v.  Vredenburgh,  8  Johns.  29;  presented  in  Saunders  u^-Wakefield,  4 

f-aunders  v.  Wakefield,  4  Barn.  &  Aid.  Bara.  &  Aid.  595,  and  the  court  unan- 

595;    Aldridge  v.  Turner,   1   Gill.   &  imously  held  that  the  consideration 

Johns.  (Md.)  427;   Tenny  v.  Prince,  4  must  appear  from  the  writing.     After 

Pick.  385;    Pillan  v.   Van  Mierop,  3  that  decision,  the  question  was  consid- 

BuiT,  1663;  Clark  tJ.  Small,  6  Yerg.  ered  settled.     See  Jenkins  ?;.  Reynolds, 

(Tenn.)  418.  S 'eon this  subject,  Krutz  6  Moore,  8G;    Id.  3  Broderip  &  Bing. 

V.  Stewart,  54  Ind.  178.  14;  Raikes  v.  Todd,  8  Adol.  &  Ell.  846; 

*The  leading  case  holding  this  doc-  Sweet  v.  Lee,  3  Man.  &  Gr.  452;  Mor- 
trine  is  Wain  v.  Warlters,  5  East,  10,  ley  v.  Boothly,  3  Bing.  107;  Bain- 
decided  in  1804.  The  coirectness  of  brid-e  v.  Wade,  16  Ad.  &  Ell.  N.  S. 
this  decision  was  denied  by  Lord  El-  89;  Hawes  v.  Armstrong,  1  Bing.  N. 
don  in  Ex  parte  Minet,  14  Vesey,  189,  G.  761;  James  r.  Williams,  3  TSTev.  & 
and  Ex  parte  Gordon,  15  Vesey,  286,  Man.  196;  Cole  l\  Dyer,  1  Cro.  &  Jer. 
and  was  doubted  in  other  cases.  See  461 ;  Clancy  v.  Piggott,  4  Nev.  &  Man. 
Phillipps  I'.  Bateman,  16  East,  356;  496. 
Goodman   v.  Chase,   1  Barn.   &  Aid.  » 19  and  20  Victoria  C.  97,  sec.  3. 


WHETHER   WRITING   MUST   EXPRESS    CONSIDERATION. 


91 


tlie  consideration  for  sucli  promise  does  not  appear  in  writing  or 
bj  necessary  inference  from  a  written  instrument."  "While  the 
Statute  of  Frauds  has  been  generally  re-enacted  in  the  United 
States,  it  has  not,  in  all  cases,  been  done  in  the  words  of  the  orig- 
inal statute.  In  those  states  where  the  original  wording  is  re- 
tained, some  have  decided  that  the  consideration  must,  and 
others,  that  it  need  not,  be  expressed  in  the  writing.  In  the  states 
where  the  word  "promise"  has  been  coupled  with  the  word 
"agreement,"  it  is  generally  held  that  the  writing  need  not  ex- 
press the  consideration.^  In  several  of  the  states  the  statute 
provides  in  terms  whether  or  not  the  consideration  shall  be  ex- 
pressed in  the  writing.  It  would  probably  subserve  no  useful 
purpose  to  attempt  a  review  of  the  American  cases,  with  reference 
to  ascertaining  on  which  side  of  this  question  the  preponderance 


'  Of  the  states  where  the  word 
"  agreement "  is  retained,  as  in  the 
original  statute,  it  has  been  held  that 
the  consideration  must  appear  from 
the  writing;  in  Georgia,  Henderson  v. 
Johnson,  6  Ga.  390;  Hargroves  v. 
Cooke,  15  Ga.  321 ;  in  Indiana,  Grego- 
ry V.  Logan,  7  Blackf.  112 — (gince 
changed  by  statute);  in  Maryland, 
Sloan  V.  Wilson,  4  Harr.  &  Johns.  322; 
Huttonv.  Padgett,  26  Md.  228;  Elliott 
V.  Giese,  7  Harr.  &  Johns.  457;  Edelen 
V.  Gough,  5  Gill.  103;  in  Michigan 
Jones  V.  Palmer,  1  Doug.  379;  in  New 
Hampshire,  Underwood  v.  Campbell, 
14  New  Hamp.  393;  Neelson  v.  San- 
born, 2  New  Hamp.  413;  in  New  Jer- 
sey, Buckley  v.  Beardslee,  2  South. 
572;  Laing  v.  Lee,  Spencer,  337;  in 
New  York,  Sears  v.  Brink,  3  Johns. 
210;  Kerr  v.  Shaw,  13  Johns.  236; 
Castle  V.  Beardsley,  10  Hun.  343;  in 
South  Carolina,  Stephens  v.  Winn,  2 
Nott,  &  McC.  372;  but  see  Lecat  v. 
Tavel,  3  McCord,  158;  and  in  Wiscon- 
sin, Taylor  v.  Pratt,  8  Wis.  674.  On 
the  other  hand,  it  has  been  held  that 
the  consideration  need  not  appear 
from  the  writing;  in  Connecticut,  Sage 
V.  Wi  cox,  6  Conn.  81;  in  Maine,  Levy 
V.   Merrill,  4  Greenl.  180;  Gilhgan  v. 


Boardman,  29  Me.  81 ;  in  Massachu- 
setts, Packard  v.  Richardson,  17  Mass. 
122 — (gince  changed  by  statute);  in 
Missouri,  Bean  v.  Valle,  2  Mo.  103; 
Halsa  V.  Halsa,  8  Mo.  303;  Little  r. 
Nabb,  10  Mo.  3;  in  North  Carolina, 
Miller  v.  Irvine,  1  De7.  &  Bat.  103; 
Ashford  v.  Robinson,  8  Ired.  114;  in 
Ohio,  Reed  v.  Evans,  17  Ohio,  128; 
and  in  Vermont,  Smith  v.  Ide,  3  Vt. 
290;  Patchin  v.  Swift,  21  Vt.  292; 
Gregory  v.  Gleed,  33  Vt.  405.  Where 
the  word  "  promise  "  is  coupled  with 
the  word  '*  agreement,"  it  has  been 
held  that  the  consideration  need  not 
be  expressed;  in  Alabama,  Thompson 
V.  Hall,  16  Ala.  204;  in  California, 
Baker  v.  Cornwall,  4  Cal.  15;  Evoy  v. 
Tewksbuiy,  5  Cal.  285;  Ellison  v. 
Jackson,  12  Cal.  542;  in  Florida, 
Dorman  r.  Executor  of  Richard,  1 
Florida,  281;  in  Kentucky,  Ratliff  v. 
Trout,  6  J.  J.  Marsh,  606;  in  Missis- 
sippi, Wren  v.  Pearce,  4  Smedes&  Mar. 
91;  in  Tennessee,  Taylor  v.  Ross,  3 
Yerg.  330;  Campbell  v.  Findley,  3 
Humph.  330;  Oilman  v.  Kibler,  5 
Humph.  19;  in  Texas,  Ellett  v.  Brit- 
ton,  10  Tex.  208;  and  in  Virginia, 
Colgin  V.  Henley,  6  Leigh,  85 


02  TUE    STATUTE    OF    FKArDS. 

of  authority  lies.  It  may  be  here  remarked  tliat  wlien  tlie  writ- 
iuc^  is  under  seal,  no  consideration  need  be  expressed  in  it. 
The  seal  itself  imports  a  consideration,  and  is  sufficient  to  satisfy 
the  statute.* 

§  6'J.  Reasons  -why  the  consideration  should  appear  from  the 
writing — Observations. — One  of  the  reasons  given  for  holding 
that  the  consideration  must  appear  from  tlie  writing  is,  that  ac- 
cording to  its  strict  legal  meaning,  tlie  word  "  agreement "  includes 
the  whole  contract  between  the  parties,  and  among  other  things, 
the  consideration  as  well  as  the  promise;  and  that  the  words 
"  memorandum  or  note  thereof"  relate  to  the  word  "agreement," 
and  were  intended  to,  and  do,  dispense  with  nothing,  unless,  per- 
haps, matters  of  form.  This  seems  to  be  a  solid  ground  upon 
which  to  rest  this  interpretation  of  the  statute.  As  already  seen, 
it  is  generally  held  by  the  courts,  even  those  which  hold  that  the 
consideration  need  not  be  expressed,  that  all  the  other  essential 
terms  of  the  contract  must  appear  from  tlie  ^\Titing.  The  consid- 
eration is  not  strictly  a  part  of  the  jDromise  of  the  i^arty  to  be 
chai'ged,  but  is  something  which  moves  from  others,  and  is  the 
inducement  to  him  for  mahing  the  promise.  The  consideration 
is,  however,  a  part  of  the  contract,  and  if  the  word  "  agreement" 
means  the  same  as  the  word  "contract,"  then  the  original  Statute 
of  Frauds  required  that  it  should  appear  from  the  ^^^:'iting.  An- 
other reason,  much  relied  upon,  is  that  if  the  consideration  was 
allowed  to  be  proved  by  parol,  it  would  open  the  door  to  all  the 
evils  which  the  Statute  of  Frauds  was  designed  to  remedy.  This 
is  not  true  in  point  of  fact.  The  agreement  is  in  words;  the  con- 
sideration is  usually  something  material,  which  is  more  suscepti- 
ble of  proof,  and  less  liable  to  mistake,  than  the  words  of  the  con- 
tract. There  seems  to  be  no  more  danger  of  perjury  in  allowing 
the  consideration  for  the  promise  to  pay  the  debt  of  another  to 
be  proved  by  parol,  than  in  allowing  the  consideration  for  any 
other  contract  to  be  proved  in  the  same  way.  The  same  objec- 
tion would  exclude  oral  evidence  from  every  case.  The  rule  that 
the  consideration  must  appear  from  the  writing  was  a  great  iiard- 
ship  on  the  commercial  world,  and  produced  much  more  fraud 
than  it  prevented.  Kecognizing  this  fact,  the  English  parliament, 
and  the  legislatures  of  several  of  the  United  States,  have  express- 

'Dou-lass  V.  Rowland,   24  Wend.       Smith  (N.  Y.)  415;  McKensie,  r.  Far- 
35;    Rosenbaum  v.  Gunter,  2  E.   D.      rell,  4  Bosw.  (N.  Y.)  192. 


WHEN  co:n-sideeation  sufficiently  appears.  93 

ly  provided  by  statute  that  the  written  promise  to  pay  the  debt 
of  another,  need  not  express  the  consideration,  and  the  results,  so 
far  from  being  disastrous,  have  proved  highly  satisfactorj-. 

§  TO.  "When  the  consideration  sufiBciently  appears  from  the 
writing. — In  the  courts  holding  that  the  consideration  must  ap- 
pear from  the  wi'iting,  it  is  not  necessary  that  such  consideration 
be  formally  and  precisely  expressed.  It  is  sufficient  if  it  appear 
by  necessary  implication  from  the  terms  of  the  written  instru- 
ment. The  rule  is  thus  well  expressed:  "  It  would  undoubtedly 
be  sufficient,  in  any  case,  if  the  memorandum  is  so  framed  that 
any  person  of  ordinary  capacity  must  infer  from  the  perusal  of 
it  that  such,  and  no  other,  was  the  consideration  upon  which  the 
undertaking  was  given.  ]^ot  that  a  mere  conjecture,  however 
plausible,  that  the  consideration  stated  in  the  declaration  was 
that  intended  by  the  memorandum,  would  be  sufficient  to  satisfy 
the  statute;  but  there  must  be  a  well-grounded  inference, 
to  be  necessarily  collected  from  the  terms  of  the  mem- 
orandum, that  the  consideration  stated  in  the  declaration, 
and  no  other  consideration,  was  intended  by  the  parties  as 
the  ground  of- the  promise,*  A  guaranty  was  as  follows:  "I 
guaranty  the  payment  of  any  goods,  which  J.  Stadt  delivers  to 
J.  ]^ichols."  Held,  it  sufficiently  appeared  that  the  delivery  of 
the  goods  was  the  consideration  for  the  promise.^  The  same 
thing  was  held  when  the  words  were  as  follows :  "Sir,  I  will  be 
accountable  to  you  for  the  payment,  within  six  months,  of  the 

^Hawes  t".  Armstrong-,  1  Bing.  (N.  vis  r.  Wilkins,  7  Mees.  &  "Wels.  410; 

C.)  761,  per  Tindal,  C.  J.     For  cases  White  v.   Woodward,  5  Man.  Gr.  & 

in  which  it  was  held  that  the  conside-  Scott,   810;    Caballero    v.   Slater,    14 

ration  sufficiently  appeai'cd  from  the  Com.  B.  (5  J.  Scott)  300;    Edwards  v. 

writing,  and  which  illustrate  this  sub-  Jevons.  8  Man.  Gr.  &  Scott,  436;  Pace 

ject,  see  Grant  v.  Hotchkiss,  26  Barb.  v.  Marsh,  1  Bing.  216;    Id.  8  Moore, 

(N.  T.)  63;    Boehm    v.  Campbell,   8  59;  Johnston ij.  NichoUs,  1  Man  Gr.  & 

Taunt.   679;    Shortrede  v.   Cheek,    1  Scott,  251;  Church  y.  Brown,  21  New 

Adol.  &  Ell.  57;    Gorrie  r.  Woodley,  York,  315;    Williams  v.  Ketchum,  19 

17  Irish  Com.   Law  Rep.  221;    Bain-  Wis.  231;  Stead  v.  Liddard,  8  Moore, 

bridge  v.  Wade,   16  Adol.  &  Ell.  (N.  2;  Russell  v.  Moseley,  3  Brod.  &  Bing. 

S.)  89;  Hoad  r.  Grace,  7  Hurl.  &  Nor.  211;  Dutchman  v.  Tooth,  5  Bing.  (N. 

494;  Lysaght  v.  Walker,  5  Bligh,  (N.  C.)  577;  Id.  7  Scott,  710;    Emmott  r. 

R.)l;  JfZ.  2  Dow  &  Clark,  211;  Broom  Kearns,  5  Bing.  (N.  C.)  559;    Gotts- 

v.Batchelor,  1  Hurl.  &  Nor.  255;  Old-  berger  t;.  Radway,  2  Hilton,  (N.  Y.) 

ershaw  v.  King,  2  Hurl.  &  Nor.  517;  342. 

Staats    V.    Hewlett,    4    Denio,  559;  "  Stadt  v.  LiH,  9  East,  348. 

Boehm  v.  Campbell,  3  Moore,  15;  Jar- 


94  THE   STATUTE    OF   FRAUDS. 

seed  order  forwarded  bj  my  son  "  (naming  liim.) '  The  same 
thing  was  lield,  when  the  guaranty  was  in  these  words:  "Mr. 
Clark,  of  this  place,  will  purchase  a  small  stock  of  cloths  and 
clothing  of  you,  which  I  hope  you  will  sell  to  him  cheap,  and  I 
have  no  doubt  he  will  make  you  a  valuable  customer.  I  hereby 
guaranty  the  collection  of  any  amount,  which  you  may  credit 
him  with,  not  exceeding  two  thousand  dollars."*  In  another 
case,  the  wTiting  was  as  follows:  "  I  do  hereby  agree  to  become 
surety  for  E..  G.,  now  your  traveler,  in  the  sum  of  500^  for  all 
money  he  may  receive  on  your  account."  Held,  it  sufficiently 
appeared  that  the  consideration  for  the  undertaking  was  the  con- 
tinuation of  the  traveler  in  the  service  of  his  employers.  ^  The 
same  thing  was  held  for  the  same  reason  when  the  words  were: 
"  I  hereby  guarantee  to  you  the  sum  of  250Z  in  case  Mr.  P. 
should  make  default  in  the  capacity  of  agent  and  traveler  to 
you."  *     "Where  the  writing  was:  "  I  hold  myself  responsible  to 

*  (plaintiffs)  to  the  amount  of  $2,000,  for  any  drafts  they 
liave  accepted  or  may  hereafter  accept  for  John  Latouche,"  it 
was  held  that  it  sufficiently  appeared,  tliat  in  consideration  that 
the  plaintiffs  would  accept  for  Latouche,  the  defendant  agreed  to 
be  responsible.^  In  another  case,  the  words  were:  "I  agree  to 
be  security  to  you  for  J.  C,  late  in  the  employ  of  J.  P.,  for 
whatever  you  may  entrust  him  with  while  in  your  employ,  to  the 
amount  of  50Z,"  Held,  the  consideration  sufficiently  appeared. 
It  might  fairly  be  implied  that  J.  C.  had  left  one  service,  and 
that  the  guaranty  was  given  in  consideration  of  his  being  taken 
into  another.*  The  insertion  of  the  words  "  for  value  received," 
in  the  writing,  are  a  sufficient  expression  of  the  consideration  to 
satisfy  the  statute.^  When  a  guaranty  under  seal  expressed  a 
consideration  of  one  dollar  in  hand  paid  to  the  guarantor,  it  was 

^Nash  V.  Hartland,     2  Irish  Law  Cas.  (N.  T.)  326;  Id.  2  Keyes,   589; 

Rep.  190.  Cheeneyr.  Cook,  7  Wis.  413;    Miller 

*  Eastman  v.  Bennett,  6  Wis.  232.  -v.  Cook,  23  New  York,  495;  Douglass 
='Ryde«;.  Curtis,  8  Dow.  &  Ry.  62.  v.  Howland,  24  Wend.  35;  Whitney 
*Kennawayt\  Treleavan,  5  Mees.  &  v.    Stearns,    16    Me.  394;    Cooper  t'. 

Wels.  498.  Dedrick,  22  Barb.  (N.  Y.)  516;  How- 

5  Hutton  V.  Paxlgett,    26  Md.  228.  ard  v.  Holbrook,  9  Bosw.  (N.  Y.)  237; 

"Newbury  v.   Armstrong,    6  Bing.  Lapham  v.  Barrett,    1  Vt.  247;    Con- 

201;  7r7.  3Moore  &  Payne,    509;  Id.  necticut,  &c.  Ins.  Co.  v.  Cleveland  R. 

Moody  k  Malkin,  389.  R.  Co.  41  Barb.  (N.  Y.)  9;  Brewster  v. 

'Dayr.  Elmore,  4  Wis.  190;     Mo-  Silence,  8  New  York,  207;  Martin  r. 

sher  V.  Hotchkiss,3  Abb.  Rep.  Omitted  Hazard  Powder  Co.,   2  Colorado,  596. 


WHEN    CONSIDEKATION   DOES   NOT    SUFFICIENTLY   APPEAE.         05 

held  that  the  guaranty  was  valid  and  binding,  even  thongh  the 
one  dollar  liad  never  been  paid.  The  conrt  said,  that  in  order  to 
invalidate  the  guaranty,  it  must  be  shown,  not  only  that  the  dol- 
lar had  not  been  paid,  but  also  that  there  was  no  agreement  to 
pay  it.' 

§  Tl.  When  consideration  does  not  sufficiently  appear,  or 
consideration  appearing  is  insufficient — Instances. — In  a  case 
where  the  writing  was  as  follows:  ''  Inclosed  I  forward  you  the 
bills  drawn  per  J.  A.  upon  and  accepted  by  L.  D.,  which  I  doubt 
not  will  meet  due  honor,  but  in  default  thereof,  I  will  see  the 
same  paid;"  it  was  held  the  consideration  did  not  sufficiently  ap- 
pear." The  same  thing  was  held  when  the  words  were:  "I  here- 
by guaranty  to  pay  W,  H.,  etc.,  $10  per  month  until  the  sum  of 
$300,  due  by  Messrs.  B.  &  H.,  etc.,  shall  be  paid." '  AVhen  the 
undertaking  was:  "  I  hereby  undertake  to  secure  to  you  the  pay- 
ment of  any  sums  of  money  you  have  advanced  or  may  here- 
after advance  to  *  or  on  tlieir  account  with  you,  commencing 
the  1st  jS'ovember,  1831,  not  exceeding  2,000Z,,"  it  was  held  that 
the  consideration  for  the  guaranty  of  the  past  advances  did  not 
sufficiently  appear.  The  court  said:  "The  consideration  must 
either  appear  on  the  face  of  them  (guaranties)  or  by  necessary  in- 
ference from  them,  for  unless  this  is  the  case  parol  evidence  is 
not  excluded.  The  terms  of  the  instrument  do  not  lead  to  any 
clear  inference  that  the  future  advances  were,  as  the  declaration 
alleges,  the  consideration  for  guarantying  the  bygone  advances."  ^ 
A  guaranty  was:  "  Bill  Oct.  2d,  IStttt,  $1,300.29.  I  hereby  agree 
to  guaranty  the  payment  of  U.  &  Co.'s  note  for  the  above  amount, 
in  favor  of  *  payable  nine  mos.  after  date  thereof."  Held,  it 
plainly  expressed  a  past  consideration,  and  was  void  for  that  rea- 
son.' 

'  Childs  V.  Barnum,  11  Barb.  (N.  Y.)  perior  Ct.)  31.    For  cases  holding  that 

14.     It  has  been  held' that  if  the  con-  the  consideration  is  not  sufficiently  ex- 

sideration  expressed  was    a  fictitious  pressed,  or  that  an  insufficient  consid- 

one,  it  was  sufficient.  Happe  v.  Stout,  eration  is  expressed,  and  illustrating 

2Cal.460.  this  point,  see  Morley  v.  Boothby,  3 

■■'Hawes  v.  Armstrong,  1  Bing.  (N.  Bing.  107;    Id.  10  Moore,  395;  James 

C.)761;  Id.  1  Scott,  661.  v.  Williams,  5  Barn.   &  Ado!.  1109 

■^Palsgrave  v.  Murphy,  14  Up.  Can.  Church  v.  Brown,  29  Barb.  (N.Y.)  486 

C.  P.  R.  153.  Bushell  v.  Beavan,  1  Bing.  N.  C.  108 

*  Eaikes  r.  Todd,  1  Perry  &  Dav.  138;  Allnutt  v.  Ashenden,  5  Man.  &  Gr.  392 

Id.  8  Adol.  &  Ell.  846.  Id.  6  Scott  N.  R.  127;  Spicer  r.  Nor- 

s  Weed  r.  Clark,  4  Sandf.  (N.Y,  Su-  ton,  13  Barb.  (N.Y.)  542;  Bell  r. Welch, 


96  THE   STATUTE   OF   FKAUDS. 

§  72.  'When  -writing  ambiguous,  it  may  be  explained  by  parol 
evidence. — When  the  words  of  the  writing  are  ambiguous,  and 
may  be  construed  to  express  a  past  or  a  future  consideration, 
parol  evidence  of  tlie  situation  and  surroundings  of  the  parties  at 
the  time  the  contract  was  made,  may  be  given  in  order  to  arrive 
at  a  true  interpretation  of  the  language  employed  by  them.  Thus 
a  writino-  w'as:  "As  there  was  no  time  set  for  the  payment  of 
your  account,  and  Mr.  J.  thought  it  would,  be  an  accommodation 
to  him  to  have  you  wait  until  *         if  that  will  answer  your 

purpose,  I  will  be  surety  for  the  payment,"  etc:  Held,  the  words 
"  your  account  "  were  ambiguous,  and  might  as  well  mean  "  your 
account  to  be  made,"  as  "  your  account  already  made; "  that  pa- 
rol evidence  was  admissible  to  show  it  was  for  an  account  to  be 
made,  and  that  the  writing  sufficiently  expressed  the  considera- 
tion.^ So,  where  the  words  were:  "In  consideration  of  E.  R.  & 
Co.  giving  credit  to  D.  G.,  I  hereby  engage  to  be  responsible  to, 
and  pay  any  sum  not  exceeding  1201.  due  to  E.  R.  &  Co.  by  D. 
J.,"  parol  evidence  of  extrinsic  circumstances,  was  admitted  to 
show  that  the  words,  "  giving  credit,"  were  intended  to  apply  to 
a  certain  credit  which  had  been  agreed  upon ,  and  it  was  held  that 
the  writing  disclosed  a  sufficient  consideration.^  When  the 
words  were:  "In  consideration  of  your  being  in  advance"  to  the 
third  party,  parol  evidence  was  admitted  to  show  that  at  the 
time  the  wi'iting  was  executed,  no  advance  had  been  made.^  The 
same  thing  was  held  when  the  words  were:  "  In  consideration  of 
your  having  advanced,"  *  and  in  both  cases  the  consideration  was 
held  to  be  sufficiently  expressed.  Where  the  words  were:  "I 
hereby  guaranty  B's  account  with  A,"  and  it  was  shown  by 
parol  that  there  was  a  pre-existing  account  to  which  the  w^ords 
could  apply,  it  was  held  that  the  guaranty  was  void  for  want  of 
a  sufficient  consideration.* 

9  Man.  Gr.  dk  Scott,  154;  Bewley  r.  'Walrath    v.    Thompson,    4    Hill, 

Wliiteford,   Hayes   (Irish  Rep.)  356;  200. 

Wain  t\  Warlters,  5  East,  10;  Lees  v.  ^  Edwards  r.  Jevons,  8  Man.  Gr.  & 

Whitcomb,  5  Bing.  34;  James  v.  Wil-  Scott,  436. 

Hams,  3  Nev.  &  Man.  196;   Sykes  v.  ^Ruigh.  v.  Brooks,   10  Adol.  &  Ell. 

Uixon,  9  Adol.  &  Ell.  693;  Bentham  v.  309. 

Cooper,  5  Mces.  &  Wels.  621;  Price  v.  '♦GoMshede  v.  Swan,  1  Wels.  Hurl. 

Richardson,   15  Mees.   &  Wels.  539;  &  Gor.  1-54.                    4. 

Cole  V.  Dyer,  1  Cromp.  &  Jer.  461 ;  Jen-  *  Allnutt  v.  Ashenden,  5  Man.  &  Gr. 

kins  V.  Reynolds,  3  Brod.  &  Bing.  14.  392.    -For    cases    further  illustrating 


PAPERS    KEAD    TOGETHER   TO    EXPRESS    CONSIDERATION.  97 

§  73.  When  several  papers  may  be  read  together  to  express 
consideration  for  promise. — It  is  not  necessary  that  the  consider- 
ation should  be  expressed  in  the  writing  which  contains  the 
promise.  If  it  appears  from  any  other  writing  which  is  so  re- 
ferred to  in  that  which  contains  the  promise,  as  to  become  a  part 
of  it,  this  is  sufficient.  Thus,  the  plaintiff  having  pressed  W  for 
payment  of  a  debt,  the  defendant,  who  was  Ws  attorney,  sent  to 
the  plaintiff  a  bill  accepted  by  W,  at  two  months,  enclosed  in  a 
letter  in  which  the  defendant  said:  "  W,  being  disappointed  in 
receiving  remittances,  and  you  expressing  yourself  inconvenienced 
for  money,  I  send  you  his  acce23tance  at  two  months."  The 
plaintiffs  refused  to  take  the  bill  unless  the  defendant  put  his 
name  to  it.  "Whereupon  the  defendant  wrote  upon  the  back  of 
the  letter:  "  I  will  see  this  bill  paid  for  AV."  The  court  said  that 
reading  all  the  papers  together,  the  promise  was  that  "  in  consid- 
eration of  your  forbearing  to  sue  W  for  two  months,  I  will  pay 
the  bill  if  he  fails  to  do  so,"  and  the  defendant  was  held  liable.^ 
Certain  parties  executed  a  contract  as  agents  for  another,  and  at 
the  same  time  executed  a  guaranty  of  the  contract,  but  the 
guaranty  did  not  express  a  consideration.  Held,  that  the  guar- 
anty and  contract  being  contemporaneous,  were  all  one  transac- 
tion, and  should  be  read  together;  and  a  sufficient  consideration 
was  expressed  in  the  contract  to  sustain  the  guaranty.^  A,  by 
letter,  in  which  the  consideration  sufficiently  appeared,  entered 
into  an  agreement  with  B,  and  B  became  a  party  to  the  engage- 
ment by  writing  a  few  lines  at  the  bottom  of  a  copy  of  A's  let- 
ter. C  became  guarantor  for  B  to  A  by  an  indorsement  on  the 
back  of  this  copy  of  A's  letter,  in  which  indorsement  reference 
was  made  to  the  terms  of  the  agreement  on  the  other  side.  In 
an  action  on  the  guaranty,  it  was  held  that  the  reference  in  the 
indorsement  to  tlie  terms  of  the  agreement  was  a  sufficient  mem- 
orandum of  the  consideration  to  satisfy  the  Statute  of  Frauds.^ 

this  subject,  see  Butcher  v.  Steuart,  290;  Bainbridge  r.  Wacle,  16  Adol.  & 

11   Mees.   &  Wels.  857;    Lysaght  v.  Ell.  N.  S.  89;  D'Wolf  v.  Rabaud,  1 

Walker,   5  Bligh.  N.  R.  1;  Singley  v.  Peters,  476. 

Cutter,    7   Conn.   291;    Shortrede    v.  '  Emmbtt  r.  Kearns,  5  Bing.   N.  C. 

Cheek,  1  Adol.  &  Ell.   57;    Arms  v.  559;  Id.  7  Scott,  687. 

Ashley,  4  Pick.  71;  Thornton  r.  Jen-  '^  Jones  v.  Post,  6  Cal.  102. 

yns,  1  Man.  &  Gr.  166;  Wood  v.  Beach,  ^  Stead  v.  Liddard,  1  Bingham,  196; 

7  Vt.  522;  Steele  v.  Hoe,    14  AdoJ.  &  for  further  cases  to  similar  eftect,  see 

Ell.  N.  S.  431;  Smith  v.  Ida,   3  Vt.  Simons  i?.  Steele,  36  New  Hamp.  73; 
7 


98  THE    STATUTE   OF   FKAUDS. 

But  -where  a  valid  written  contract  to  pay  for  stock  deliverable 
at  a  future  day  was  signed  by  the  buyer,  and  at  the  same  time, 
and  as  an  express  condition  of  the  seller's  making  the  bargain, 
the  defendant  indorsed  on  the  same  paper:  "  I  guaranty  the 
within  contract,"  the  guaranty  was  held  void  because  it  did  not 
express  a  consideration.  The  court  said  the  contracts  could  not 
be  read  together  because  they  were  not  executed  by  the  same 
parties.  The  one  was  a  promise  to  pay  absolutely,  the  other  only 
in  case  of  the  default  of  the  principal,  etc' 

§  74.  Whether  guaranty  of  note  must  express  consideration. 
— Whether  the  guaranty  of  a  promissory  note  must,  in  order  to 
be  valid,  express  a  consideration,  has  been  differently  decided  by 
different  courts,  and  sometimes,  by  the  same  court.  Thus,  at  the 
time  a  note  was  made,  and  on  the  same  piece  of  paper,  a  guaran- 
tor wrote  under  the  note:  "I  hereby  guaranty  the  payment  of 
the  above  note."  Held,  the  guaranty  was  void,  because  it  ex- 
pressed no  consideration.^  The  court  said  the  two  contracts  were 
entirely  different  iji  their  nature,  and  between  different  parties, 
and  could  not  be  read  together.  A  party  agreed  to  become  sure- 
ty on  an  overdue  promissory  note,  under  seal,  and  because  there 
was  no  room  at  the  bottom  of  the  note  for  his  signature,  indorsed 
his  name  in  blank  on  its  back.  He  was  held  not  liable.^  The 
court  said:  "  The  indorsement  in  blank  of  a  note  not  negotiable 
is  not  such  written  evidence  of  a  promise  to  pay  as  the  statute 
(of  frauds)  requires."  A  guaranty  indorsed  on  a  promissory  note 
at  the  time  of  its  execution,  as  follows:  "We  guaranty  the  pay- 
ment of  the  within  note,"  was  held  void,  because  it  did  not  ex- 
press a  consideration.*  Where  a  stranger  to  a  note  before  its  de- 
Wilson  Sewing  Machine  Co.  t'.Schnell,  Field,  G  Wis.  407;  Otis  v.  Haseltine, 
20  Minn.  40;  Coldham  v.  Showier,  3      27  Cal.  80. 

Man.   Gr.   &  Scott,  312;    Hanford  r.  ^Brewster  v.  Silence,  8  New  York, 

Rogers,  11  Barb.  (N.  Y.)  18;  Adams  207.  This  case  overruled  Manrow  « 
V.  Bean,  12  Mass.  139;  Brettel  v.  Wil-  Durham,  3  Hill,  584,  which  held  to  the 
liams,  4  Wels.  Hurl.  &  Gor.  623;  Bai-  contrary.  Brewster  v.  Silence  was  fol- 
ley  V.  Freeman,  11  Johns.  221;  Cos  v.  lowed  and  approved  in  Glen  Cove  Mut. 
Duffield,  7  Moore,  252;  Lecatt'.  Tavel,  Ins.  Co.  v.  Harrold,  20  Barb  (N.  Y.) 
SMcCord  (So.  Car.)  158;  Union  Bank  u.  298.  To  similar  affect,  see  Hunt  r. 
Coster's  Exr.  3  New  York,  203;  Dor-  Brown,  5  HiU,  145;  HaU  v.  Farmer,  5 
man  v.  Bigelow,  1  Fla.  281;  Colboum  Denio,  484. 
V.  Dawson,  10  Com.  B.  (1  J.  Scott)  765.  ^  Wilson  v.  Martin,  74  Pa.  St.  159. 

'  Draper  v.   Snow,    20  New  York,  *  Lock  v.  Reid,  6  Up.  Can.  Q.  B.  R. 

331;  to  similar  effect,   see  Hutson  v.      (0.  S,)  295. 


SIGNATURE    BY   PARTY    TO    BE    CHARGED.  99 

livery  indorsed  it  in  blank,  it  was  lield  that  lie  was  a  guarantor, 
and  his  guaranty  was  void,  because  it  did  not  express  a  consider- 
ation.' On  the  other  hand,  when  a  party  was  paid  a  monej  con- 
sideration for  guarantying  a  note  ah-eady  executed  by  the  princi- 
pals, and  in  execution  of  his  contract  to  guaranty  indorsed  his 
name  in  blank  on  the  back  of  the  note,  it  was  held  that  it  suffi- 
ciently expressed  the  consideration.'^  The  court  said  that  under 
the  circumstances  a  guaranty  or  a  note  might  have  properly 
been  written  over  the  indorsement,  and  further:  "It  is  in  the 
nature  of  a  note  or  bill,  and  equally  so  of  an  indorsement,  even 
in  blank,  that  it  imports  a  consideration  the  same  as  a  specialty." 
"Where  a  party  indorsed  a  promissory  note,  as  follows:  "  I  agree 
to  stand  security  for  the  payment  of  the  within  amount;"  it  was 
held  that  the  note  and  indorsement  should  be  taken  together  as 
one  instrument,  and  that  they  sufficiently  expressed  the  consider- 
ation.^ A  married  woman  executed  a  23romissory  note,  which  con- 
tained the  words  "  for  value  received,"  and  at  the  same  time  a 
stranger  wrote  below  the  note,  "  I  hereby  guaranty  the  payment 
of  the  above  note  on  maturity."  The  court  said  that  both  instru- 
ments having  been  executed  at  the  same  time,  should  be  consid- 
ered together,  and  showed  a  sufficient  consideration ;  but  it  would 
have  been  otherwise  if  they  had  been  executed  at  different 
times.^ 

§  75.  Signature  by  party  to  be  charged.-^The  statute  requires 
that  the  writing  shall  be  "  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  lawfully  au- 
thorized." Even  though  the  document  is  all  written  by  the  party 
to  be  charged,  it  must  still  be  signed  by  him,^  but  need  not  be 
sealed.^  Whether  sealing  alone  is  sufficient  is  an  open  question, 
but  the  better  opinion  seems  to  be  that  it  is.''     A  mark  by  a 

'  Von  Doren  v.  Tjacler,   1   Nevada,  Bany  p.  Law,  1  Crancli  (C.  C)  77;  Sel- 

380.  hjv.  Selby,  3Meriv.  2;  Bailey  v.  Og- 

^  Oakley  v.  Boorman,  21  Wend.  588.  den,  3  Johns.  399;  Hubert  v.  Turner, 

This   case    was    subsequently    disap-  4  Scott  (N.  R.)  486;  Anderson  w.  Har- 

proved  by  the  sama  court;  see  Brews-  old,  10  Ohio,  399. 

ter  V.  Silence,  8  New  York,  207.     To  « Worrall  v.  Munn,  5  New  York,  229; 

same  effect  as  Oakley  ?'.  Boorman,  see  Farris  v.  Martin,    10  Humph.  (Tenn.) 

Fuller  V.  Scott,  8  Kansas,  25.  495;    Wheler  v.  Newton,  2  Eq.  Gas. 

*  Dorman    v.   Bigelow,    1    Florida,  44,  c.  5. 

281.  ''LemajTie  v.  Stanley,  3  Levinz,  1; 

*Nabbt'.  Koontz,  17  Md.  283.  Worneford    v.   Worneford,    Strange, 

5Hawkinst;.Holmes,  IP.Wms.  770;  764;  Gryle  v.  Gryle,   2  Atkyns,  177; 


100 


THE   STATUTE    OF    FKAUDS. 


marksman  is  a  sufficient  signature.'  A  printed  signature  is  suffi- 
cient, especially  when  it  is  subsequently  recognized  by  the  party, 
or  where  part  of  the  instrument  is  in  his  handwriting.^  A  sig- 
nature by  initials  is  sufficient,^  and  the  christian  name  may  be 
denoted  by  an  initial,  or  left  out  altogether.*  It  is  doubtful 
whether  the  signature  of  a  person  mentioned  in  the  writing  as  a 
contracting  party,  but  who  on  the  paper  professes  to  sign  as  a 
witness,  is  sufficient.^  The  signature  of  a  party  to  instructions  for 
a  telegraphic  message  accepting  a  written  offer  is  sufficient.*  The 
sio-nature  may  be  at  the  top,  in  the  body  or  at  the  foot  of  the 
writing.  There  is  no  restriction  in  this  regard,  except  that  the 
signature  must  be  so  placed  as  to  authenticate  the  instrument  as 
the  act  of  the  person  executing  it.'     The  rule  has  been  thus  well 


Grayson  v.   Atkinson,  2  Yes.  Sr.  454; 
.Smiths.  Evans,  1  Wils.  313;  Wiight 
Wakeford,  17  Vesey,  454;  Cherryr. 
V.   Heming,   4  Wels.   Hurl.    &   Gor. 
631. 

^  Selby  V.  Selby,  3  Merivale,  2;  Jack- 
son r.  YanDuseu,  5  Johns.  144;  Hu- 
bert V.  Moreau,  12  Moore,  216;  Sclmei- 
der  V.  Norris,  2  Maule  &  Sel  286;  Ba- 
ker V.  Bering,  8  Adol.  &  Ell.  94;  Tay- 
lor V.  Dening,  3  Nev.  &  Per.  228; 
Morris  v.  Kniffin,  37  Barb.  (N.Y.)  336; 
Barnard  v.  Heydrick,  49  Barb.  (N.Y.) 
62. 

-Saunderson  r.  Jackson,  3  Esp.  180 
Lernedt'.  Wannemacher,  9  Allen,  412 
Schneider  v.  Xorris,  2  Maule  &  Sel 
286;  Merritt  v.  Clason,  12  Johns.  102 
Commonwealth  r.  Ray,  3  Gray,  441 
Viehe  v.  Osgood,  8  Barb.  (N.  Y.)  130 
Davis  V.  Shields,  26  Wend.  341;  Pitts 
V.  Beckett,  13  Mees.  &  Wels.  743. 

^  Salmon  Falls  Man.  Co.  v.  Goddard, 
14  How.  (N.  S.)  447;  Goi-rie  v.  Wood- 
ley,  17  Irish  Com.  Law  R.  221;  Palm- 
er V.  Stephens,  1  Denio,  471 ;  Jacob  v. 
Kirk,  2  Moody  &  Rob.  221;  Sanborn  v. 
Flagler,  9  Allen,  474;  Sweet  r.  Lee,  3 
Man.  &  Gr.  452. 

*Lobb  V.  Stanley,  5  Queen's  B. 
574. 

^Welford  v.  Beezeley,  1  Yes-.  Sr.  6; 
Gosbell  V.  Archer,  2  Adol.  &  Ell.  500; 


Blore  V.  Sutton,  3  Merivale,  237;  Coles 
r.  Trecothick,  9  Yesey,  234;  Hill  v. 
Johnston,  3  Ired.  Eq.  (Nor.  Car.) 
432. 

^Godwin  v.  Francis,  Law  Rep.  5 
Com.  P.  295;  Dunning  v.  Roberts, 
35  Barb.  (N.Y.)  463.  As  to  whether 
the  name  of  the  party  must  actually 
appear,  or  whether  a  designation  by 
which  he  maybe  identified  is  sufficient, 
see  Selby  v.  Selby,  3  Merivale,  2;  Hu- 
bert v.  Moreau,  12  Moore,  216;  Baker 
i\  Dering,  8  Adol.  &  ED.  94. 

'^Lemayne  v.  Stanley,  3  Levinz.  1; 
Id.  Freeman,  538;  Fessenden  t^.Musse}', 
11  Cush.  127;  Holmes  v.  Mackrell,  3 
Com.  B.  (N.  S.)  789;  Wise  v.  Ray,  3 
Greene  ( I oa.)4C0;  Knight  i'.  Crockford, 
1  Esp.  190;  McConnell  v.  Brillhart,  17 
lU.  354;  Ogi.vie  v.  Foljambe,  3  Meri- 
vale, 53;  James  v.  Patten,  8  Barb.  (N. 
Y.)  344;  Morrison  V.  Tumour,  18  Yesey, 
175;  Yerbyv.  Grigsby,  9  Leigh  (Ya.) 
387;  Bleakley  r.  Smith,  11  Simons, 
150;  Davis  v.  Shields,  24  Wend.  322; 
Propert  n.  Parker,  1  Russ.  &  My.  625; 
Draper  v.  Pattani,  2  Spear  (So.  Car.) 
292;  Western  v.  Russell,  3  Yes.  & 
Bea.  187;  Merritt  v.  Clason,  12 
Johns.  102;  Penniman  v.  Hartshorn, 
13  Mass.  87;  Williams  v.  Wood,  16 
Md.  220;  Hawkins  v.  Chace,  19  Pick. 
502;  2  Smith's  Leading  Cas.  p.  249. 


SIGNATUKE    BY   AGENT.  101 

stated:  "  Altlioiigli  tlie  signature  be  in  the  beginning  or  middle 
of  tlie  instrument,  it  is  as  binding  as  if  at  the  foot  of  it;  the 
question  being  always  open  to  the  jury,  whether  the  party,  not 
having  signed  it  regularly  at  the  foot,  meant  to  be  bound  by  it  as 
it  then  stood,  or  whether  he  left  it  so  unsigned  because  he  refused 
to  complete  it."  '  The  statute  provides  that  the  writing  shall  be 
signed  by  the  "party  to  be  charged  therewith."  If  it  is  signed 
by  the  party  to  be  charged,  it  is  not  necessary  that  it  be  signed 
by  the  other  party  to  the  contract,  although  as  already  shown, 
such  other  party  must  be  designated  by  it,* 

§  76.  Signature  by  agent. — The  writing  may  be  signed  by 
the  party  to  be  charged,  or  by  "  some  other  person  thereunto  by 
him  lasrfully  authorized."  .  Generally,  any  one  who  niay  be  an 
agent  for  any  other  purpose,  may  be  an  agent  for  sigjiing  the 
writing  required  by  the  statute,  but  neither  party  can  be  the 
agent  of  the  other  for  this  purpose.^  The  same  person  may  act 
as  the  agent  of  both  parties.  This  is  illustrated  by  the  familiar 
case  of  an  auctioneer,  who,  being  the  agent  of  the  ow^ner  of 
property,  sells  it  to  the  highest  bidder.  He  thereupon  becomes 
the  agent  of  such  bidder  to  complete  the  contract,  and  by  enter- 
ing his  name  in  the  usual  place  as  purchaser,  binds  him  as  such." 

^Johnson  v.   Dodgson,   2  Mees.  &  Jour.  N.  S.  312;  Parebrother  v.  Sim- 

Wels.  653,  per  Lord  Abinger,  C.  B.;  mons,  5  Barn.  &  Aid.  333;  Boardman 

Saunderson  t'.  Jackson,  2  Bos.  &  Pul.  v.  Spooner,  13  Allen,  353;  Robinson 

238.  V.  Garth,  6  Ala.  204;  Bent  v.  Cobb,  9 

^  Reuss  V.    Picksley,    Law  Rep.    1  Gray,  397.     See,  also,  on  this  subject, 

Exch.  342;  Clason  v.  Bailey,  14  Johns.  Bird  v.  Boulter,  4  Barn.  &  Adol.  443; 

484;  Laythoarp  v.  Bryant,  2  Bing  (N.  Ennisw.  Waller,  3  Blackf.  (Ind.)472; 

C.)  755;  Morin  v.  Martz,  13  Minn.  191;  Brant  v.  Green,  6  Leigh  (Va.)  16. 
Huddleston  v.  Briscoe,  11  Vesey,  583;  *  Morton  v.   Dean,    13  Met.  (Mass.) 

McCrea  v.  Purmont,    16  Wend.  460;  385;  Kenworthy  v.  Schofield,  2  Barn.& 

Martin  v.  Mitchell,  2  Jacob  &  Walk.  Cress.   945;     McComb    v.  Wright,   4 

413;    Douglass  v.    Spears,   2  Nott  &  Johns  Ch.  659;    White  i'.  Proctor,   4 

McC.  (So.  Car.)  207;  Hatton  v.  Gray,  Taunt.  209;  Gill  v.   Bicknell,  2  Cush. 

2  Ch.  Cas.  164;    Barstow  v.  Gray,   3  355;  Simon  v.  Motives,  1  W.  Black- 

Greenl.  (Me.)  409;  Seton  v.  Slade,   7  stone,  599;  7(7.  3 Burrow,  1921;  Cleaves 

Vesey,     265;    Shirley    v.    Shirley,    7  r.  Foss,  4  Greenl.  (Me.)  1;    Hinde  v. 

Blackf.  (Ind.)  452;  Fowle  v.  Freeman,  Whitehouse,  7  East,  558;  Anderson  v. 

9  Vesey,   351;    Allen  v.   Bennett,    3  Chick,  BaileyCh.  (So.  Ca.)  118; Emmer- 

Taunt.  169;  Penniman  v.   Hartshorn,  sonr.  Heelis,  2  Taunt.  38;  Endicott  «. 

13  Mass.  87.  Penny,    14  Sm.  &  Mar.   (Miss.)  144; 

^  Wright  t'.  Dannah,   2  Camp.  203;  Walker  v.  Constable,    1   Bos.  &  Pul. 

Rayner  v.    Linthorne,  2  Car.  &  Pa.  306;  Gordon  v.  Sims,   2  McCord,  Ch. 

124;    Sharman  v.  Brandt,     40  Law  (So.  Car.)  151;  Coles  t?.  Trecothick,   9 


102 


THE   STATUTE    OF   FKAUDS. 


The  same  is  true  of  public  officers,  ^v]lO  sell  property  at  auction, 
such  as  sheriit's  and  deputy  sherifFs '  administrators "  commis- 
sioners of  court,"  etc.  The  autliority  of  the  agent  may  be  con- 
ferred in  the  same  manner  as  the  authority  of  any  other  agent, 
and  even  if  he  have  no  authority  when  he  sign,  his  act  may  be 
afterwards  ratified  by  the  principal  by  parol."  It  is  not  necessary 
tliat  the  agent  who  signs  should  be  appointed  by  writing,*  unless 
the  wi-iting  he  executes  is  under  seal,  when  his  authority  must 
also  be  under  seal."  It  is  not  necessary  that  the  agent  should 
sign  the  name  of  the  principal  to  the  writing.  If  he  signs  his 
own  name,  parol  evidence  will  be  admitted  to  prove  the  agency, 
and  charge  the  principal.'' 

§  77.  Pleading.— In  a  declaration  in  a  suit  against  a  surety 
or  guarantor,  it  is  not  necessary  to  state  that  the  promise  was  in 
writing."     This  is  founded  on  the  general  principle  that  where  a 


Vesey,  234;  Singstack  v.  Harding,  4 
HaiT,  &  Johns.  186;  Buckmaster  v. 
HaiTop,  7  Vesey,  341 ;  Smith  v.  Jones, 
7  Leigh  (Va.)165;  Stansfield  r.  John- 
son, 1  Esp.  101;  Adams  v.  McMilLin, 

7  Port.  (Ala.)  73;  Blagden  v.  Brad- 
bear,  12  Vesey,  4G6;  Browne  on 
Frauds,  p.  386. ' 

'Robinson  r.  Garth,  6  Ala.  204; 
Christie  v.  Simpson,  1  Ricli.  Law  (So. 
Car.)  401;  Ennis  r.  Waller,  3  Blackf. 
( Fnd.)  472;  Carrington  v.  Anderson,  5 
Munf.  (Va.)32;  Brent  v.  Green,  6 
Leigh  (Va.)  16. 

2  Smith  V.  Arnold,  5  Mason  (C.  C.) 
414. 

'Gordon  v.  Sims, 2  McCord  Ch.  (So. 
Car.)  151;  Hutton  r.  Williams,  35 
Ala.  503;  Hart  v.  Woods,  7  Blackf. 
(Ind.)568;  but  the  power  of  an  auc- 
tioneer, in  this  regard,  is  confined  to 
those  who  act  in  that  capacity;  see 
Anderson  v.  Chick,  Bailey  Eq.  (So. 
Car.)  118;  Batturs  v.  Sellers,  5  HaiT. 
&  Johns.  (Md.)   117;  Sewall  v.  Fitcb, 

8  Cowen,  215. 

*Go3beU  V.  Archer,  2  Adol.  &  Ell. 
500;  Holland  r.  Hoyt,  14  Mich.  238; 
Maclean  r.  Dunn,  4  Bing.  722. 

'Mortlock  r.  BuUer,  10  Vesey,  292; 
Inhabitants  of  Alna   v.  Plummer,  4 


Greenl.  (Me.)  258;  Rucker  v.  Cam- 
meyer,  1  Esp.  105;  McWhorter  v.  Mc- 
Mahan,  10  Paige,  386;  Wright  v. 
Dannah,  2  Camp.  203;  Lawrence  v. 
Taylor,  5  Hill,  107;  Greene  v.  Cramer, 
2  Connor  &  Law.  54;  Hawkins  r. 
Chace,  19  Pick.  502;  Clinan  ?;.  Cook,  1 
Schoales  &  Lef.  22 ;  Ulen  v.  Kittredge, 
7  Mass.  233;  Graham  v.  Musson,  7 
Scott,  769;  YerbyjJ.  Grigsby,  9  Leigh, 
(Va.)  387;  Coleman  v.  Bailey,  4  Bibb 
(Ky.)  297;  Johnson  v.  McGruder,  15 
Mo.  365;  Johnson  i:  Dodge,  17  HI. 
433. 

« Blood  V.Hardy,  15  Me.  61. 

'Wilson  V.  Hart,  7  Taunt.  295; 
Dykers  v.  Townsend,  24  New  York,  57; 
Salmon  Falls  Ins.  Co.  v.  Goddard,  14 
How.  (U.  S.)  447;  Curtis  v.  Blair,  26 
Miss.  309;  Yerby  v.  Grigsby,  9  Leigh 
(Va.)  387;  Williams  v.  Woods,  16  Md. 
220;  Merritt  v.  Clason,  12  Johns.  102; 
McConnell  r.  Brillhart,  17  111.  354; 
AVilliams  r.  Bacon,  2  Gray,  387;  Pinck- 
ney  v.  Hagadorn,  1  Duer.  (N.  Y.)  89. 

^Walker?;.  Richards,  39  NewHamp. 
259;  Lilley  v.  Hewitt,  11  Price,  494; 
Ecker  v.  McAllister,  45  Md.  290;  Ma- 
cey  V.  Childress,  2  Tenn.  Ch.  R.  (Coop- 
er) 438;  Marston  v.  Sweet,  66  New 
York,  207. 


PLEADING.  103 

statute  makes  a  writing  necessary  to  a  common  law  matter  where 
it  was  not  so  before,  in  declaring  on  that  matter  it  is  not  neces- 
sary to  state  that  it  is  in  writing,  although  it  must  be  proved  in 
evidence;  but  when  the  matter  is  created  by  statute,  and  a  writ- 
ing is  required,  then  the  pleading  must  allege  the  existence  of 
the  writing.  When  it  is  pleaded  that  there  was  no  writing,  it 
may  be  replied  generally  that  there  was  a  writing  without  setting 
it  out.'  The  fact  that  there  was  no  writing  need  not  be  spe- 
cially pleaded,  but  may  be  taken  advantage  of  under  the  general 
issue.' 

'  Wakeman  v.  Sutton,  2  Adol.  &  Ell.      Eastwood  v.  Kenyon,  3  Perry  &  Dav. 
78.  276. 

2 Mines  v.  Scultliorpe,  2  Camp.  215; 


CHAPTER  III. 


OF   THE   LIABILITY   OF   THE   SUEETY   OR   GUARANTOR   GEN- 
ERALLY. 


Section. 

.     78 


Construction  of  the  contract 

Surety  and  guarantor  favorites  in 
law,  and  are  not  chargeable  be- 
yond the  strict  terms  of  their 
engagement       .... 

Rule  that  surety  is  favorite  in  law, 
and  rules  for  construing  con- 
tract must  not  be  confounded. 
Parties  may  practically  constrae 
contract 

When  consideration  paid  to  guar- 
antor, not  usurious.  Measure 
of  damages  on  guaranty  of  note 

When  surety  may  be  sued  before 
principal.  Property  of  surety 
may  be  first  taken  on  execution 
against  principal  and  surety 

When  guarantor  of  collection  lia- 
ble. When  mortgage  on  prop- 
erty of  principal  must  be  fore- 
closed before  guarantor  liable  . 

When  guarantor  secondarily  lia- 
ble. When  creditor  must  use 
diligence  against  principal,  and 
■what  will  excuse  its  use    . 

What  is  due  diligence  . 

When  neither  previous  proceed- 
ings against  principal,  nor  his 
insolvency  necessaiy  to  charge 
guarantor 

When  a  writing  does  not  amount 
to  a  guaranty.    Instances 

When  writing  does  amount  to 
guaranty.     Instances 

Guaranty  of  payment  "when  due" 
of  over  due  note,  and  of  void 
certificate  of  deposit  valid 

When  surety  for  rent  liable  if  ten- 


79 


80 


81 


82 


83 


84 
85 


86 
87 
88 

89 


Section, 
ant    holds    over.     Burning    of 
house,  and  landlord  getting  in- 
surance,    does    not    discharge 
surety  for  rent  .        .         .        .90 

When  surety  concluded  by  result 
of  litigation  between  other  par- 
ties     91 

When  surety  for  debt  liable  for  ad- 
ditional damages       .        .        .92 

Whether  surety  liable  beyond 
penalty  of  his  bond  .        .        .93 

When  surety  on  note  liable  if  it 
is  not  discounted  by  party  to 
whom  it  is  payable    .        .        .94 

When  surety  on  note  not  liable  if 
it  is  discounted  by  party  other 
than  payee        .        .        .        .95 

When  guarantor  on  general  guar- 
anty, or  on  guaranty  addressed 
to  another  liable  to  person  act- 
ing on  it    .         .        .        .        .96 

When  guarantor  not  liable  to  any 
one  except  party  to  whom  guar- 
anty is  addressed        .  .    97 

Surety  for  several  not  liable  for 
one.  Surety  for  one  not  liable 
for  several         .        .        .        .93 

Surety  for  firm  not  liable  if  part- 
ners changed.  Surety  for  per- 
formance of  award  not  hable  if 
arbitrators  changed  .        .        .99 

When  surety  for  the  acts  of  one 
person  liable  if  such  acts  are 
performed  by  him  and  a  part- 
ner     100 

When  obligation  given  by  surety 
to  firm  binds  him  after  change 
in  firm 101 


(104) 


CONSTKUCTION   OF   THE   CONTEACT. 


105 


Section. 

Surety  not  liable  bej'ond  scope  of 
his  obligation.     Instances         .  102 

Liability  of  surety  or  guarantor. 
Special  cases     ....  103 

When  surety  cannot  set  up  illegal 
acts  of  creditor  or  i^rincipal  as  a 
defense 104 

When  surety  not  liable  for  specific 
performance.  Surety  not  charg- 
ed to  exonorate  estate  of  princi- 
pal.    Other  cases       .        .        .  105 

What  payment  by  person  indem- 
nified will  charge  surety.  When 
surety  liable  for  costs.  Other 
cases 106 

Surety  not  Liable  for  greater  sum 
than  principal.     Other  cases     .  107 

Sureties  on  assignee's  bond  not  li- 
able to  those  who  defeat  the  as- 
signment. Principal  cannot,  al- 
lege for  error  that  surety  is  dis- 
charged.    Other  cases       .        .  108 

When  surety  released  if  creditor 
and  principal  intermarry.   Sure- 
ty not  liable  to  party  who  pays 
debt     at    principal's    request.    - 
Other  cases        .        .        .        .109 

When  agreement  to  pay  in  good 
notes  not  guaranty  that  notes  in 
which  payment  is  made  are 
good.    Other  cases    .        .        .110 


Section. 

Surety  for  return  of  slave  liable  it 
death  of  slave  caused  by  princi- 
pal.    Other  cases        .        .        Ill 

Surety  for  balance  which  may  re- 
main due  after  sale  of  property 
not  liable  till  completed  sale 
made.     Other  cases  .        .        .112 

When  guaranty  not  revoked  by 
death  or  guarantor.  When 
sm-ety  cannot  relieve  himself 
from  future  liability  by  notice  .  113 

When  death  of  guarantor  revokes 
guaranty.  When  surety  may 
terminate  his  UabHity  by  notice  114 

When  surety  may  be  sued  jointly 
with  principal   ....  115 

When  recovery  on  common  money 
counts  cannot  be  had  against 
surety.  Surety  for  alimony  can- 
not be  compelled  by  motion  to 
pay  it.    Other  cases  .         .        .  116 

When  surety  who  is  not  liable  at 
law  will  not  be  charged  in  equity  117 

When  equity  will  charge  surety 
who  is  not  hable  at  law    .        .118 

When  new  promise  revives  lia'oil- 
ity  of  surety  or  guarantor        .  119 

Statute  of  Limitations.  When 
new  promise  or  partial  payment 
by  principal  takes  case  out  of 
statute  as  to  surety   .        .        .  120 


§  78.  Construction  of  the  contract. — The  first  step  towards 
ascertaining  the  liability  of  a  snrety  or  guarantor,  is  to  determine 
the  meaning  of  his  contract.  The  rules  which  should  govern  in 
the  construction  of  such  contracts  are  therefore  of  great  impor- 
tance. It  has  been  said  by  several  courts  that  a  strict  construc- 
tion in  favor  of  the  surety  or  guarantor  should  be  adopted,  and 
all  doubts  resolved  in  his  favor.'  The  better  and  generally  re- 
ceived opinion, 'however,  is  that  this  contract  should  be  construed 
the  same  as  any  other  contract,  and  that  the  same  rules  should  be 
applied  to  ascertain  the  true  intention  of  the  parties.^     It  has 


^Nicholson  v.  Paget,  1  Cromp.  & 
Mees.  48;  Id.  3  Tyr.  164. 

^  Kastner  w.Winstanley,  20  Up.  Can. 
Com.  P.  R.  101 ;  White  v.   Reed,   15 


Conn.  457;  Locke  v.  McVean,  33  Mich. 
473;  Crist  v.  Burlingame,  62  Barb.  (N. 
Y.)  351. 


106  LIAJJILITY    OF   SURETY    GENERALLY. 

been  said  that  letters  of  credit  aud  commercial  guaranties  should 
not  be  construed  the  same  as  bonds  which  are  usually  entered  in- 
to with  deliberation,'  but  that  they  "  ought  to  receive  a  liberal 
interpretation.  By  a  liberal  interpretation  we  do  not  mean  that 
the  words  should  be  forced  out  of  their  natural  meaning,  but 
simply  that  the  words  should  receive  a  fair  and  liberal  interpre- 
tation, so  as  to  attain  the  object  for  which  the  instrument  is  de- 
signed, and  the  purposes  to  which  it  is  applied.  We  should  never 
forget  that  letters  of  guaranty  are  commercial  instruments,  gen- 
erally drawn  up  by  merchants  in  brief  language;  sometimes  in- 
artificial, and  often  loose  in  their  structure  and  form;  and  to  con- 
strue the  words  of  such  instruments  with  a  nice  and  technical 
care,  would  not  only  defeat  the  intentions  of  the  parties,  but  ren- 
der them  too  unsafe  a  basis  to  rely  on  for  extensive  credits,  so 
often  sought  in  the  present  active  business  of  commerce  through- 
out the  world."  *  This  whole  subject  has  been  thus  ably  summa- 
rized: "In  guaranties,  letters  of  credit  tmd  other  obligations  of 
sureties,  the  terms  used  and  language  employed  are  to  have  a  rea- 
sonable interpretation,  according  to  the  intent  of  the  parties,  as 
disclosed  by  the  instrument  read  in  the  light  of  the  surrounding 
circumstances,  and  the  purposes  for  which  it  was  made.  If  the 
terms  are  ambiguous,  the  ambiguity  may  be  explained  by  refer- 
ence to  the  circumstances  surrounding  the  j)arties,  and  by  such 
aids  as  are  allowable  in  other  cases,  and  if  an  ambiguity  still  re- 
mains, I  know  of  no  reason  why  the  same  rule  which  holds  in 
regard  to  other  instruments  should  not  apply;  and  if  the  surety 
has  left  anything  ambiguous  in  his  expressions,  the  ambiguity  be 
taken  most  strongly  against  him.^  This  certainly  should  be  the 
rule,  to  the  extent  that  the  creditor  has  in  good  faith  acted  upon 
and  given  credit  to  the  supposed  intent  of  the  surety.  He  is  not 
liable  on  an  implied  engagement,  and  his  obligation  cannot  be 
extended  by  construction  or  implication  beyond  the  precise  terms 
of  the  instrument  by  which  he  has  become  surety.  But  in  such 
instruments  the  meaning  of  written  language  is  to  be  ascertained 
in  the  same  manner  and  by  the  same  rules  as  in  other  instru- 

'  Bell  V.  Bruen,  1  How.  (U.  S.)  169,  Isaac,  6  Mees.  &  Wels.  605;  Mason  v. 

per  Catron,  J.  Pritchard,  12  East.  227;  Har<rreave  v. 

'Lawrence  v.  McCalmont,  2  How.  Smee,  6  Bing.  244;  Wood*?.  Priestner, 

(U.  S.)  426  per  Story,  J.  Law  Ptep.  2  Exch.  66;  Hocy  t;.  Jarman, 

*To  this  effect  see,  also,  Bailey  v.  39  New  Jer.  Law,  (10  Vroom)  523. 
Larehar,  5  Rhode  Is,  530;  Mayer  v. 


SUEETIES   FAVOKITES    IN    LAW.  107 

nients,  and  when  the  meaning  is  ascertained,  e;ffect  is  to  be  given 
toit."^ 

§  79.  Surety  snd  guarantor  favorites  in  law,  and  are  not 
chargeable  beyond  strict  terms  of  their  engagement. — A  nile 
never  to  be  lost  sight  of  in  determining  the  liability  of  a  surety 
or  guarantor,  is,  that  he  is  a  favorite  of  the  law,  and  lias  a  right 
to  stand  upon  the  strict  terms  of  his  obligation,  when  such  terms 
are  ascertained.^  This  is  a  rule  universally  recognized  by  the 
courts,  and  is  applicable  to  every  variety  of  circumstances.  Its 
existence  has  no  doubt  given  rise  to  many  of  the  expressions 
used  by  courts,  when  they  have  said  that  in  construing  the  con- 
tract every  intendment  should  be  made  in  favor  of  the  surety  or 
guarantor,  when  in  fact  it  should  have  no  controlling  influence 
at  all  on  the  construction  of  the  contract.  As  illustrating  the 
view  of  this  rule  held  by  the  courts,  it  has  been  said:  "Where 
any  act  has  been  done  by  the  obligee  that  may  injure  the  surety, 
the  court  is  very  glad  to  lay  hold  of  it  in  favor  of  the  suret3\"  ^ 
Again:  "jSTo  principle  is  more  firmly  settled  in  this  state  than 
this:  that  sureties  may  stand  on  the  very  terms  of  a  statutory 
bond  or  undertaking.  So  clearly  has  this  doctrine  been  an- 
nounced and  acted  upon,  that  it  may  be  regarded  as  entering  in- 
to the  condition  of  such  an  undertaking,  that  it  will  not  be  ex- 
tended by  the  courts  beyond  the  necessary  import  of  the  words 
used.  It  will  not  be  implied  that  the  surety  has  undertaken  to 
do  more  or  other  than  that  which  is  expressed  in  such  obliga- 
tion."^ Again:  "It  is  now  too  well  settled  to  admit  of  doubt, 
that  a  guarantor,  like  a  surety,  is  bound  only  by  the  strict  letter 
or  precise  terms  of  the  contract  of  his  principal,  whose  perform- 
ance of  it  he  has  guarantied  ;  that  he  is  in  this  respect  a  favorite 
of  the  law,  and  that  a  claim  against  him  is  strictissimi  jurist  * 
Again:  "  ITo thing  can  be  clearer,  both  upon  principle  and  authori- 
ty, than  the  doctrine  that  the  liability  of  a  surety  is  not  to  be  ex- 
tended by  implication  beyond  the  terms  of  his  contract.  To  the 
extent  and  in  the  manner  and  under  the  circumstances  pointed 

^  Belloni  v.  Freeborn,  63  New  York,  ^Law  v.  The  East  India  Company, 

383,  per  Allen,  J.     On  same  subject,  4  Vesey,  824. 

and  to   same  effect,  see  Douglass  v.  *  Lang  v.  Pike,  27  Ohio  St.  498,  per 

Reynolds,  7  Peters,  (U.S.)  113;  Rus-  Ashburn  J. 

sell  V.  Clark's  Exr.  7  Cranch,  69.  ^  Kingsbury  v.   Westfall,    61    New 

^  Peop  e  v.  Chalmers,  60  New  York,  York,  356,  per  Gray,  C. 
154;  Chase  v.  McDonald,  7  Harris  k 
Johns,  (Md.)  160. 


108  LIABILITY    OF    SUKETY    GEXEKALLY. 

out  in  Ills  obligation,  lie  is  bound,  and  no  further.  It  is  not 
sullieient  that  he  ma}'-  sustain  no  injury  by  a  change  in  the 
contract,  or  that  it  may  be  even  for  his  benefit.  He  has  a 
ri^^ht  to  stand  upon  the  very  terms  of  his  contract,  and 
if  he  does  not  assent  to  any  variation  of  it,  and  a  varia- 
tion is  made,  it  is  fatal."  '  The  principle  is  clearly  stated,  and 
one  of  the  reasons  for  it  given  as  follows:  "It  is  a  well-settled 
rule,  both  at  law  and  in  equity,  that  a  surety  is  not  to  be  held  be- 
yond the  precise  terras  of  his  contract;  and  except  in  certain  cases 
of  accident,  mistake  or  fraud,  a  court  of  equity  will  never  lend 
its  aid  to  fix  a  surety  beyond  what  he  is  fairly  bound  to  at  law. 

*  This  rule  is  founded  upon  the  most  cogent  and  salutary  jirin- 
ciples  of  public  policy  and  justice.  In  the  complicated  transac- 
tions of  civil  life,  the  aid  of  one  friend  to  another  in  the  charac- 
ter of  surety  or  bail,  becomes  requisite  at  every  step.  Without 
these  constant  acts  of  mutual  kindness  and  assistance,  the  course 
of  business  and  commerce  would  be  prodigiously  impeded  and 
disturbed. '  It  becomes,  then,  excessively  important  to  have  the 
rule  established  that  a  surety  is  never  to  be  implicated  beyond  his 
specific  agreement."  ^ 

§  80.  Rule  that  surety  is  favorite  in  la-w,  and  rules  for  con- 
struing contract  must  not  be  confounded — Parties  may  practically 
construe  contract. — The  rules  for  Construing  the  contract  of  a 
surety  or  a  guarantor,  should  by  no  means  be  confounded  with 
the  rule  that  sureties  and  guarantors  are  favorites  of  the  law,  and 
have  a  right  to  stand  upon  the  strict  terms  of  their  obligations. 
There  is  no  legal  prohibition  against  entering  into  a  contract  of 
suretyship  or  guaranty.  For  any  contract  which  it  is  legal  to 
make,  it  is  legal  that  a  surety  or  guarantor  shall  become  responsi- 
ble. In  the  construction  of  the  contract  of  a  surety  or  guarantor, 
as  well  as  of  every  other  contract,  the  true  question  is:  What  was 
the  intention  of  the  parties,  as  disclosed  by  the  instrument  read 
in  the  light  of  the  surrounding  circumstances?  The  contract  of 
the  surety  or  guarantor  being  just  as  legal  as  that  of  the  prin- 
cipal, there  is  no  good  reason  for  holding  that  in  arriving  at  the 
intention  of  the  parties,  one  set  of  rules  shall  govern  when  the 
principal,  and  another  when  the  surety  or  guarantor  is  concerned. 

'Miller  v.  Stewart,  9  Wheaton,  680,  ^p^^  j^g^^j.^  q  j  _  (afterwards  Chan- 

per  Story  J.  cellor),  in  Ludlow  v.  Simond,  2  Caines' 

Cas.  in  Error,  1. 


CONSIDERATION   TO    GUAHANTOE   NOT    IJSUEIOUS.  109 

To  say  that  a  certain  set  of  words  in  a  contract  mean  one  thing 
when  tlie  principal  is  defendant,  and  that  the  same  words  in  the 
same  contract  mean  another  thing,  simply  because  the  defendant 
is  a  surety  or  guarantor,  is  absurd.  The  meaning  of  the  words 
is  not  affected  by  the  fact  that  the  party  sought  to  be  charged  is 
principal,  surety  or  guarantor.  On  the  other  hand,  a  surety  or 
guarantor  usually  derives  no  benefit  from  his  contract.  His  object 
generally  is  to  befriend  the  principal.  In  most  eases  the  consid- 
eration moves  to  the  principal,  and  he  would  be  liable  upon  an  im- 
plied contract,  while  the  surety  or  guarantor  is  only  liable  because 
he  has  agreed  to  become  so.  He  is  bound  by  his  agreement,  and 
nothing  else.  I^o  implied  liability  exists  to  charge  him.  It  has 
been  repeatedly  decided  that  he  is  under  no  moral  obligation  to 
pay  the  debt  of  his  principal.'  Being  then  bound  by  his  ao-ree- 
ment  alone,  and  deriv^ing  no  benefit  from  the  transaction,  it  is 
eminently  just  and  j)roper  that  he  should  be  a  favorite  of  the 
law,  and  have  a  right  to  stand  upon  the  strict  terms  of  his  obli- 
gation. To  charge  him  beyond  its  terms,  or  to  permit  it  to  be 
altered  without  his  consent,  would  be,  not  to  enforce  the  contract 
made  by  him,  but  to  make  another  for  him.  The  parties  them- 
selves may  give  a  practical  construction  to  a  guaranty,  and  that 
construction  will  be  enforced.  "Where  a  guaranty  was  such  that 
standing  alone  it  would  not  have  been  held  to  be  continuing,  but 
the  parties  had  for  some  time  acted  upon  it  as  a  continuing 
guaranty,  it  was  held  that  it  should  be  so  construed.  The  court 
said:  "We  have  found  no  case  where  the  parties  have  been  al- 
lowed to  repudiate  any  such  long  standing  and  unequivocal  prac- 
tical construction  of  their  contract."  ^  Evidence  by  the  clerks  of 
a  party  to  whom  a  letter  of  credit  was  addressed,  showing  that 
he  understood  it  to  be  a  continuing  guaranty,  and  acted  upon  it 
as  such,  has  been  held  competent  in  a  suit  against  the  writer  of 
such  letter.  The  court  said  the  evidence  was  competent  to  show 
that  advances  had  been  made  on  the  faith  of  the  guaranty,  if  for 
no  other  purpose.^ 

§  81.      When   consideration   paid   to  guarantor  not   usurious — 
Measure  of  damages  on  guaranty  of  note. — The  honci  fide  sale  of 

1  Winston  v.   Fenwick,    4  Stew.  &  veer  v.  Wrig-ht,  6  Barb.  (N.  Y.)  547. 

Port.  (Ala.)  269;  Harrison  ?'.  Field,   2  "■^  Per  Redfield,    C.   J.,  in  Michigan 

Wasliington  (Va.)  136;  Pickersgill  v.  State  Bank  r.  Pecks,  28  Vt.  200. 

Laliens,  15  Wallace,  140;  Pecker  v.  ^Douglass?'.  Reynolds.  7  Peters  (U. 

Julius,  2  Browne  (Pa.)  31;   Van  Der-  S.)  113. 


110  LIABILITY    OF    SURETY   GENERALLY'. 

one's  credit  hj  way  of  guarantj,  or  by  making  a  note  for  anotli- 
er's  accommodation,  tlioiigb  for  a  consideration  exceeding  the  legal 
rate  of  interest,  is  not  usurious  if  the  transaction  is  not  connect- 
ed witli  a  loan  between  the  parties.  "  As  the  law^  now  stands,  a 
man  has  as  ffood  a  ri2:ht  to  sell  his  credit  as  he  has  to  sell  his 
goods  or  his  lands,  and  if  he  deal  fairly  he  may  take  as  large  a 
price  as  he  can  get  for  either  of  them."  '  However  small  the  con- 
sideration may  be  which  the  guarantor  receives,  he  is  liable  for 
the  full  amount  of  the  debt  guarantied,  however  large,  if  such  be 
tlie  scope  of  his  contract.  Thus,  after  a  note  for  $7,868.80  had 
been  executed  and  delivered  by  the  principals,  one  Oakley,  in  con- 
sideration of  $190,  agreed  to  guaranty  the  payment  of  the  note, 
and  in  execution  of  the  agreement  indorsed  it  in  blank.  Held, 
he  was  liable  for  the  full  amount  of  the  note.  The  court  said: 
"  It  is  not  for  us  to  hamper  Mr.  Oakley  or  any  other  citizen  in 
such  a  way  as  to  preclude  his  making  money  by  insuring  the  debts 
of  his  neighbors.  It  is  enough  that  he  has  not  been  imposed  up- 
on." ^  When  the  guaranty  is  that  there  is  a  certain  sum  due  on  a 
note,  the  measure  of  damages  is  the  value  of  a  judgment  for  that 
amount,  if  one  had  been  obtained  against  the  makers.  And  in 
such  case,  when  the  makers  are  solvent  but  the  note  has  been  paid, 
the  measure  of  damao;es  is  the  full  amount  o-uarantied  to  be 
due.^ 

§  82.  When  surety  may  be  sued  before  principal — Property  of 
surety  may  be  first  taken  on  execution  against  principal  and 
surety. — Whether  a  surety  or  a  guarantor  becomes  liable  to  suit 
immediately  upon  the  default  of,  and  before  any  steps  are  taken 
against,  the  principal,  depends  in  every  case  upon  the  terms  of  his 
contract.  When,  by  the  terms  of  the  contract,  the  obligation  of 
the  surety  or  guarantor  is  the  same  as  that  of  the  principal,  then 
as  soon  as  the  principal  is  in  default,  the  surety  or  guarantor  is 
likewise  in  defiiult,  and  may  be  sued  immediately  and  before  any 
proceedings  are  had  against  the  principal.*  This  results  from  the 
fact  tliat  he  had  a  right  to  contract  such  a  liability,  and  having 
done  so,  he  is  bound  by  his  engagement.     In  such  case  no  demand 

^More  r.Howland,  4  Deiiio,  264,  per  » Head  v.  Green,  5  Bissell,  311,  per 

Bronson,  C.  J.  Blodgett,  J. 

*  Oakley  v.  Boorman,  21  Wend.  588,  *  Penny  v.  Crane  Bros.  Man.  Co.,  80 

per  Cowen,  J.    To  same'  effect,  see  111.  244;  Wilson  v.  Campbell,  1  Scam. 

Cooper  V.  Page,  24  Me.  73.  (lU.)  493;  Redfield  v.  Haight,  27  Conn. 


SURETY   MAY    BE    SUED    BEFOKE   PKINCIPAL.  Ill 

071  tliG  principal  is  necessary/  ISTor  is  any  demand  on  the  surety 
or  guarantor  necessary.  The  bringing  of  the  suit  is  a  sufficient 
demand/  'Nor  need  unliquidated  damages  be  liquidated  by  a 
previous  suit  against  the  princij)al/  "Where  the  bond  of  a  deputy 
treasurer  to  a  treasurer  provided  that  the  treasurer  should  be  "  kept 
free  from  all  incumbrances,  blame,  damage  and  loss,"  from  any 
acts  of  the  deputy,  the  deputy  having  made  default,  it  was  held 
that  the  treasurer  had  a  right  to  recover  on  the  bond  against  the 
sureties  for  sucli  default,  although  he  had  not  himself  paid  anything 
on  account  thereof/  When  the  surety  or  guarantor  is  in  default,  the 
creditor  is  not,  before  proceeding  against  him,  obliged  to  exhaust 
a  mortgage  which  beholds  on  the  property  of  the  principal  for  the 
payment  of  the  same  debt/  "  It  is  clearly  competent  for  a  cred- 
itor to  secure  himself  both  by  a  lien  on  property  and  the  engage- 
ment of  a  third  person  undertaking  for  the  payment  by  the  debt- 
or. And  the  creditor  is  not  obliged  to  proceed  in  equity  upon 
his  mortgage,  but  has  tlie  election  either  to  seek  a  foreclosure  or 
prosecute  an  action  at  law  upon  the  promise  of  the  debtor  and 
his  surety."  ^  A  suit  against  a  surety  on  a  note  will  not  be  de- 
layed because  the  principal  has  been  adjudged  a  bankrupt,  and 
tlie  note  has  been  tiled  by  the  payee  in  the  bankruptcy  proceed- 
ings, and  a  judgment  i*endered  for  his  distributive  share  of  the 
the  assets.  The  surety  can  himself  j^ay  the  note,  and  j)i'Ove  his 
claim  against  the  estate  of  the  principal.''  Upon  an  appropria- 
tion by  the  sheriff  of  the  proceeds  of  a  sale  of  A's  real  estate,  a 
judgment  against  A  as  the  surety  of  B  must  be  paid  in  pref- 
erence to  subsequent  judgments  against  A,  although  it  appear 

31;  Smith  V.  Rogers,  14  Ind.  224;  Ran-  case  of   a    surety   on    an   executor's 

elaugh  V.  Hayes,  1  Vernon,  189;  Aber-  bond. 

crombie  v.  Knox,  3  Ala.  728;  Garey  v.  ^  Janes  v.  Scott,  59  Pa.  St.  178. 

Hignutfc,  32  Md.  552;  Geddis  v.  Hawk,  ^Baby  v.  Baby,  8  Up.  Can.  Q.  B.  R. 

1  Watts,  (Pa.)  280,  overruling  Hawk  v.  76;  to  same  effect,  see  Wilson  v.  Stil- 

Geddis,  16  Serg.  &  Rawle,  23;  Hoey  v.  well,  9  Ohio  St.  467;  Grant  v.  Hotch- 

Jarman,  39  New  Jer.  Law  (10  Vroom)  kiss,  26  Barb.  (N.  Y.)  63. 

523.  5  Jones  v.  Tincher,  15  Ind.  308;  New 

'  Can-  V.  Card,  34  Mo.  513;  Mitchell  Orleans  Canal  &  Banking  Co.  v.  Escof- 

V.  Williamson.  6  Md.  210.  fie,  2  La.  An.  830;  Day  v.  Elmore;  4 

2 Byrne  v.  Mhm   Ins.   Co.,   56  111.  Wis.  190;  Ranelaugh ».  Ha^es,  1  Ver- 

321;  Hough  V.  ^tna  Life  Ins.  Co.  57  non,  189. 

111.  318,  which  were  cases  of  sureties  ^Cullum  v.   Gaines,  1  Ala.  23,  per 

on  bonds  of  insurance  agents;  Wood  Collier,  C.  J. 

V.  Barstow,  10  Pick.  368,  which  was  a  'Gregg  v.  Wilson,  50  Ind.  490. 


11-2  LIABILITY    OF    SUKETY    GENERALLY. 

that  the  same  jiulgincnt  is  a  lien  upon  tlic  real  estate  of  B,whicli 
is  a  sullicicnt  security  for  its  payment.  The  remedy  of  the  sub- 
sequent creditors  of  A  is  by  subrogation.  The  holder  of  the  old- 
er judgment  has  a  legal  right  to  his  money  at  once,  and  will  not 
be  delayed  to  benefit  other  creditors.'  The  State  sold  certain  land 
to  a  party,  who  gave  bond  with  surety  for  the  purchase  money. 
Tlic  certificate  of  purchase  provided  that  in  case  of  default  in 
payment,  the  premises  should  "  be  immediately  forfeit  and  revert 
to  'the  State."  Held,  the  surety  might  be  sued  for  the  whole  pur- 
chase money  remaining  unpaid.  The  State  had  an  option  to  en- 
force the  payment  of  the  whole  of  the  purchase  money,  or  to  re- 
sell the  land  and  hold  tlie  surety  for  the  balance,  if  any,  which 
might  remain  unpaid  after  such  re-sale."  After  a  joint  judgment 
is  rendered  against  principal  and  surety,  the  sheriff  may  collect 
all  the  money  from  the  surety.'  The  holder  of  an  execution 
issued  on  a  judgment  against  a  principal  and  twi>  sureties,  may 
cause  it  to  be  levied  on  land  of  one  of  the  sureties,  and  there  be- 
ino-  no  fraud  or  collusion,  it  is  no  objection  to  the  validity  of  such 
levy  that  it  was  made  at  the  request  of  the  principal  and  the  oth- 
er surety  and  of  the  holder,  who  purchased  the  rights  of  the  judg- 
ment creditor  with  money  furnished  by  the  principal  and  sucli 
other  surety."  When  the  sureties  on  a  tax  collector's  bond  obli- 
gate themselves  each  for  a  specific  sum,  the  State  is  entitled,  in 
case  the  collector  becomes  a  defaulter  to  a  judgment  against  each 
surety  for  the  whole  amount  for  which  he  is  bound,  if  the  defal- 
cation is  for  so  much,  although  the  judgments  against  the  sure- 
ties may  amount  to  much  more  than  the  defalcation.  If  judg- 
ment was  rendered  against  each  surety  for  only  his  aliquot  part 
of  the  defalcation,  and  one  or  more  of  the  sureties  proved  insolv- 
ent, the  State  would  lose  so  much.  But  no  matter  how  much 
may  be  the  aggregate  of  the  judgments,  no  more  than  the  amount 
of  the  defalcation  can  be  collected  from  the  sureties.^  One  of 
the  "  novels"  of  Justinian  allowed  sureties  the  right  to  require 
that  before  they  were  sued  the  principal  debtor  should,  at  their 

'Neff's  Appeal,  9  Watts  &  Serg.  western  Mut.  Life  Ins.  Co.  v.  Allis,  23 

(Pa.)  36;    see,   also,   on  this  subject,  Minn.  337;    Winham  v.  Crutcher,    2 

Tynt  V.  Tynt,  2  Peere  Wms.  542.  Tenn.  Ch.  R.  (Cooper)  535. 

« Rush  V.  The  State,  20  Ind.  432.  *  Taylor  v.  VanDusen,  3  Gray,  498. 

"Keaton  v.  Cox,  26  Ga.  162;  Eason  ^  State  v.  Hampton,  14  La.  An.  mO, 

V.  Petway,  1  Dev.  &  Bat.  Law,  (Nor.  Stetson  v.  City  Bank  of  N.  0.  12  Ohio 

Car.)  44.  To  similar  effect,  see  North-  St.  577. 


WHEN   GUARANTOR    OF    COLLECTION   LIABLE.  113 

expense,  be  prosecuted  to  judgment  and  execution.  Tliis  rule 
prevails  in  most  of  the  countries  which  have  adopted  the  civil 
law.  According  to  the  Roman  law  before  the  time  of  Justinian, 
the  creditor  could,  as  he  can  by  the  common  law  when  the  surety 
is  in  default,  apply  to  the  surety  first.^  The  common  law  rule, 
as  above  stated,  prevails  in  England,  in  the  United  States,  where 
not  changed  by  statute,  and.  in  other  countries  which  have  adopted 
the  common  law. 

§  83.  "When  guarantor  of  collection  liable — "When  mortgage 
on  property  of  principal  must  be  foreclosed  before  guarantor 
liable. — "While  it  is  established  that  a  surety  or  guarantor  may 
be  sued  as  soon  as  he  is  in  default,  it  is  often  difficult  to  deter- 
mine when  such  default  has  occurred.  It  has  been  held  that  a 
guaranty  of  the  collection  of  the  debt  of  another,  or  that  such 
debt  is  collectible,  means  that  it  is  "collectible  by  due  course  of 
law,"  the  same  as  if  those  words  had.  been  written  in  the  guar- 
anty, and  that  legal  proceedings  must  be  had  and  exhausted 
against  the  parties  liable  when  the  guaranty  was  executed,  be- 
fore a  cause  of  action  arises  against  the  guarantor.  These  cases 
hold  that  the  prosecution  of  such  legal  proceedings  are  a  condi- 
tion precedent  to  any  liability  on  the  part  of  the  guarantor,  and 
that  it  makes  no  difference  if  the  previous  parties  liable  for  the 
debt  are,  and  have  all  the  time  been  insolvent.''  The  guarantor 
of  collection  is  in  such  case  liable  for  the  costs  incurred  in  the 
endeavor  to  collect  the  debt  from  the  previous  parties.'  It  is 
generally  held  that  a  guarantor  that  a  debt  is  collectible  is  only 
liable  in  case  it  is  not  collectible,  because  otherwise  he  is  not  in 
default.*  But  it  is  the  doctrine  of  a  majority  of  the  courts,  and 
seems  the  better  opinion,  that  the  fact  that  it  is  not  collectible 
may  be  shown  by  any  other  competent  evidence  as  well  as  the 
fruitless  prosecution  of  a  suit  against  the  previous  parties  liable 
for  the  debt,  and  if  such  parties  are  actually  insolvent,  no  suit 

'  See  opinion  of  Kent,  C.  in  Hayes  ler,   23  Barb.  (N.  Y.)  628;    Cady  v. 

V.  Ward,  4  Johns.  Cli.  123,  and  author-  Sheldon,  38  Barb.   (N.  Y.)  103;  Burt 

ities  there  cited.  v.  Horner,  5  Barb.  (N.  Y.)  501;  Shep- 

2  Craig  V.  Parkis,  40  New  York,  181,  ard  v.  Phears,  35  Texas,  763. 

three   judges    dissenting;     Mains    v.  ^Mosher  u.  Hotchkiss,  2  Keyes,  (N. 

Haight,  14  Barb.  (N.  Y.)  76;  Cumpston  Y.)  589;  Id.  3  Alb.  Rep.  omitted'  cas. 

V.   McNaii-,  1    Wend.  457;  French  v.  326. 

Marsh,  29  Wis.  649;  Newell  r.   Fow-  *  Foster  v.  Barney,  3  Vt.  60. 


114  LIABILITY    OF   SURETY    GENERALLY. 

against  tlicm  is  necessary  to  charge  the  guarantor.'  "Where  the 
payee  of  a  note,  by  an  indorsement  on  its  back,  guaranties  its 
collection,  and  the  note  is  secured  by  a  collateral  mortgage,  which 
is  referred  to  in  it,  and  wliich  is  assigned  at  the  same  time  as  the 
note,  he  is  not  liable  upon  the  guaranty  until  resort  has  been  had 
to  the  mortgage  as  well  as  to  the  note,  for  the  collection  of  the 
money  secured.'  So,  where  the  defendants  transferred  to  the 
plaintifis  two  notes,  with  a  lien  on  a  canal-boat  given  to  secure 
their  payment,  and  also  executed  a  guaranty  of  the  notes,  con- 
ditioned that  the  plaintiffs  should  use  all  proper  and  reasonable 
means  to  collect  them  of  the  maker  before  resorting  to  the  de- 
fendants on  the  guaranty,  it  was  held  that  the  lien  on  the  boat 
must  be  exhausted  before  the  defendants  could  be  sued  on  their 
guaranty."  In  these  two  cases,  according  to  the  fair  construction 
of  the  terms  of  the  guaranties,  the  guarantors  were  not  in  default 
until  the  liens  on  the  property  of  the  principals  were  exhausted. 
They  do  not  at  all  conflict  with  the  cases  which  hold  that  where 
the  surety  or  guarantor,  by  the  terms  of  his  contract,  is  in  de- 
fault, he  may  be  sued  at  once  without  the  creditor  being  obliged 
to  foreclose  a  mortgage  for  the  same  debt  on  the  property  of  the 
principal. 

§  84.  When  guarantor  secondarily  liable — When  creditor 
must  use  diligence  against  principal,  and  •what  will  excuse  its 
use. — A  guaranty  on  the  back  of  a  note  was:  "  I  hereby  guaran- 
ty the  payment  of  the  within  note."  Held,  the  guarantor  was 
not  primarily  liable,  and  in  order  to  charge  him  it  was  necessary 
that  the  creditor  should  be  diligent  in  endeavorinir  to  collect  the 
note  from  the  principal,  unless  diligence  would  have  been  un- 
availing.* The  same  thing  was  held  where  the  assignor  of  a  non- 
negotiable  note  and  a  judgment  guarantied  the  "  payment"  of  the 
same:*     "Where  the  assignor  of  a  bond    covenanted   to  "  stand 

»  White  V.  Case,  13  Wend.  543;  Peck  ^  Barman  v.  Carhartt,  10  Mich.  338; 

V.   Frink,    10  Iowa,  193;  Brackett  v.  Johnson  v.  Sheparcl,  35  Mich.  115;   no 

Rich,  23  Minn.  485;  Stone  v.  Rocke-  proceeding-s  need  be  had  under  the 

feller,  29  Ohio  St.  625;  M'DoaU-.  Yeo-  mortg-age,   however,   if   it  is  wholly 

mans,  8  Watts,  (Pa.)  361;  Thomas  v.  valueless,  Cady  v.  Sheldon,  38  Barb. 

Dodge,  8  Mich.  51;  Sanford  v.  Allen,  (N.  Y.)  103. 

1  Cush.  473;  Dana  v.  Conant,  30  Vt.  ^'Brainard  v.  Reynolds,  36  Vt.  614. 

246;  Cooke  v.  Nathan,  16  Barb.  (N.  *  Farrow  v.  Respess,  11  Ired.   Law 

Y.)  342;  Jones  v.  Greenlaw,   6  Cold  (Nor.  Car.)  170. 
(Tenn.)  342;  Cady  v.  Sheldon,  38  Barb.  *  Benton  v.  Gibson,  1  Hill,  Law  (So. 

(N.  Y.)  103.  Car.)  56. 


WHEN    DUE    DILIGENCE   KEQUIEED.  115 

security  for  the  payment  of  it:"'  Where  the  guaranty  was  "I 
do  hereby  assign  and  guaranty  the  payment  of  the  within 
bond:'"^  Where  two  receipts  of  an  officer  for  the  collection  of 
certain  bills  were  assigned,  as  follows:  "  I  trade  the  above  to  * 
for  value  received,  and  guaranty  the  payment  of  the  same:""^ 
And  where  under"  a  note  was  written:  "  I  do  hereby  guarantj'- 
the  payment  of  the  above  note."  *  The  payee  of  a  note  indorsed 
it  as  follows :  "  I  hereby  guarantee  this  note  good  until  January 
1st,  1850."  Held,  the  effect  of  the  guaranty  was  that  the  mak- 
ers of  the  note  should  be  in  a  condition  that  payment  of  the  note 
could  be  enforced  against  them  till  January  1st,  1850,  if  legal 
diligence  was  used.*  Due  diligence  on  the  part  of  the  creditor 
against  the  prior  parties  liable  for  the  debt,  or  an  excuse  that 
they  were  insolvent,  have  been  held  necessary  to  charge  the 
guarantor,  when  the  assignment  of  certain  notes  stated:  "We 
hereby  agree  to  hold  ourselves  ultimately  responsible  with  the 
above  parties:"  "  When  the  indorsement  on  a  note  was  "to  be 
liable  only  in  the  second  instance:"  ^  And  when  in  the  assign- 
ment of  a  bond  the  words  were:  "I  *  hold  myself  liable  for 
the  ultimate  payment."  ®  In  the  foregoing  cases  the  fair  import 
of  the  guarantor's  contract  was  considered  to  be  that  he 
did  not  become  liable  to  suit  unless  due  diligence  was 
used  to  collect  the  money  from  the  prior  parties,  if  they 
were  solvent.  If  the  prior  parties  were  wholly  insolvent, 
then  the  fair  import  of  the  contract  was  held  to  be  that 
no  such  diligence  was  necessary.  When,  however,  the  con- 
tract expressly  provides  that  the  guarantor  shall  not  be  liable 
until  after  "due  course  of  law"  has  been  exhausted  against  the 
prior  parties,  there  is  no  room  for  construction,  and  the  exact 
diligence  stipulated  for,  no  matter  how  vain  it  may  be,  nor  how 
insolvent  the  parties,  must  be  used  to  charge  the  guarantor.'-* 

'Rudy  V.  Wolf,  16  Serg.   &  Rawle  « Johnston  jj.  Mills,  25  Texas,  704. 

(Pa.)  79.  Tittman  v.  Chisolm,  43  Ga.  44-2. 

2  Johnston  r.  Chapman,   3    Pen.  &  « Lewis  r.  Hobhtzell,  G  Gill  &  Johns. 

Watts  (Pa.)  18.  (Md.)  259. 

'  Craig  r.  Phipps,   23  Miss.  240.  'Dwight  v.   Wilhams,   4    McLean. 

*  Isett  V.  Hoge,  2  Watts  (Pa.)  128.  581;  Moakley  v.  Riggs,  19  Johns.  69; 

5  Hammond  v.   Chamberlin,  26  Vt.  Eddy  r.  Stantons,  21  Wend.  255.    The 

406.    As  to  what  is  a  guaranty  of  col-  precise  opposite  of  this  has  been  held 

lection  necessitating  diligence  against  in  Heralson  v.  Mason,  53  Mo.  211,  up- 

the  principal,  see,    Evans  v.  Bell,  45  on  the  ground  that  the  principal  being 

Texas,  553.  insolvent,  the  law  woiild  dispense  with 


116  LIABILITY    OF    SURETY    GENERAXLY. 

Tlie  reason  is,  that  tlie  parties  have  so  agreed,  and  the  court  can- 
not make  a  contract  for  them,  which  it  would  do  if  it  dispensed 
with  anything  required  by  the  contract.  On  the  same  principle, 
where  a  surety  for  the  payment  of  rent  stipulated  that  he  should 
be  notified  of  the  tenant's  deftiult,  it  was  held  that  he  mnst  be 
Bo  notified,  or  he  would  not  be  bound,  even  though  he  was  not 
in  any  manner  injured  by  w^ant  of  the  notice.'  In  cases  where 
the  guarantor  is  not  liable  unless  diligence  is  used  by  the  creditor 
against  the  previous  parties,  the  guarantor  may,  by  parol,  waive 
the  use  of  such  diliijence."  When  a  note  is  guarantied  to  be  col- 
lectible,  all  prior  solvent  parties,  such  as  an  indorser,'  and  the 
estate  of  a  deceased  indorser,"  must  be  exhausted  before  the  guar- 
antor is  in  default.  "When  the  effect  of  the  undertaking  is  to 
guaranty  the  solvency  of  the  prior  parties,  and  no  particular  kind 
of  diligence  is  stij^ulated  for  in  the  contract,  the  fact  that  sucli 
prior  parties  are  actually  insolvent,  constitutes  a  breach  of  the 
guaranty.  In  such  case,  no  suit  need  be  brouglit  against  such 
prior  parties;  and  such  insolvency  may  be  shown  by  any  other 
competent  evidence,  as  well  as  by  fruitless  legal  proceedings 
against  such  prior  parties.^  If  an  execution,  by  virtue  of  which 
a  levy  upon  all  property  of  the  prior  parties  might  have  been 
made,  is  returned  by  the  proper  officer  nulla  hona,  this  is  jpTiTna 
yaa^  evidence  of  the  insolvency  of  such  parties;  but  it  is  otherwise 
if  the  execution  is  issued  by  a  justice  of  the  peace,  and  real  es- 
tate cannot,  by  virtue  of  it,  be  levied  upon.**  If  the  execution  is 
thus  returned  within  four  days  after  it  is  issued,  it  is  sufficient; 
for  while  a  sale  could  not  have  been  made  in  that  time,  property 

a  fruitless  prosecution.    This  is  noth-  mustbe  exhausteil.  Aldrich  v.  Chubb, 

mjc  more  nor  less  than  to  make  a  con-  35  Mich.  350.           \ 

tract  for  the  guarantor  without    his  » pit-^Q-jj^^  ?;.  Chisolm,   43   Ga.   442; 

consent,  and  enforce  it  a<?ainst  him.  Johnston  v.  Mills,  25  Texas,  704;  Ben- 

'  Corporation  of    Chatham  v.    Mc-  ton  r.  Gibson,  1  Hill,  Law  (So.  Car.) 

Crea,  12  Up.  Can.  C.  P.   R.  352;   Ilil-  56;     Cates    v.    Kittrell,     7    Heiskcll 

lary  v.  Rose,  9  PhUa.  (Pa.)  139.  (Tenn.)  60G;  Lewis  v.  Hoblitzell,  6  Gill. 

*Dayr.    Elmore,  4  Wis.    190;  Ege  &  Johns  (Md.)  259;  McClurg  v.  Fryer, 

r.  Barnitz,  8  Pa.  St.  304;  Goodwin  v.  15  Pa.  St.   293;  Ashford  v.  Robinson, 

Buckman,  11  Iowa,  308;  contra,  Mosier  8  Ired.  Law  (Nor.  Car.)  114;  Janes  v. 

V.  Waful,  50  Barb.  (N.  Y.)  80.  Scott,  59  Pa.  St.  178;  Farrow  v.  Res- 

•Loveland  v.  Shepard,  2  Hill  (N.  pess.   11   Ired.  Law  (Nor.  Car.)  170; 

Y.)  139;    Dana    v.    Conant,    30   Vt.  Huntress  v.  Patten,  20  Me.  28;  Bull  v. 

246.  Bliss,  30  Vt.  127;  Wheeler  v.   Lewis, 

♦Benton  v.  Fletcher,  31   Vt.  418.  11  Vt.  265. 

If  there  are  are  several  principals,  all  "Gilbert  v.  Henck,  30  Pa.   St.  205. 


WHAT    IS   DUE   DILIGENCE.  117 

could  have  been  found  to  levj  upon  if  there  had  been  any  avail- 
able for  that  purpose.*  A  promise  by  the  guarantor  to  pay  the 
debt,  or  giving  his  note  for  it,  after  the  principal  has  failed  to 
pay,  is  an  admission  that  there  has  been  no  failure  to  use  due 
diligence  on  the  part  of  the  creditor  against  the  principal,  and 
such  diligence  need  not  be  otherwise  proved  in  a  suit  against  the 
guarantor.* 

§  85.  What  is  due  diligence  . — AYhen  the  terms  of  the  guar- 
anty and  the  circumstances  of  the  parties  are  such  that  the  cred- 
itor, in  order  to  charge  the  guarantor,  is  bound  to  use  due  dili- 
gence against  the  parties  previously  liable  for  the  debt,  the  ques- 
tion then  arises:  "What  is  due  diligence?"  "Due  diligence 
generally,  and  in  the  absence  of  any  special  facts,  would  require 
suit  to  be  instituted  at  the  first  regular  term  of  the  court  after 
maturity,  and  the  obtaining  judgment  and  execution  thereon,  as 
soon  as  practicable  by  the  ordinary  rules  and  practice  of  the  court."^ 
By  another  court,  due  diligence  has  been  said  to  be  that  which  a 
vigilant  creditor  employs,  when  lie  has  no  other  security  than  the 
obligation  of  the  principal  debtor.  If  the  creditor  employs  legal 
process  against  the  principal  debtor  without  delay,  the  prima 
facie  presumption  is  that  he  has  been  duly  diligent,  but  suing  out 
process  simply,  and  letting  it  run  its  course,  may  not  be  due  dili- 
gence. If  the  creditor  has  special  knowledge  of  how  he  can  col- 
lect the  money,  he  must  collect  it,  even  if  more  than  the  regular 
process  of  suit  is  necessary.*  What  is  due  diligence  in  each  par- 
ticular case,  will  depend  upon  the  circumstances  of  that  case.  A 
judgment  against  the  prior  parties  liable  for  the  debt,  promptly 
obtained,  and  execution  issued  thereon,  are  prima  facie  evidence 
of  due  diligence.  If,  in  such  case,  other  facts  exist,  which  show 
that  dne  diligence  has  not  been  used,  tlie  burden  of  proving  them 
is  on  the  guarantor.*  If  the  prior  i3arties  are  without  the  state, 
but  have  property  in  the  state,  known  to  the  creditor,  which  can 
be  reached  by  attachment,  the  creditor  must,  in  the  exercise  of 
due  diligence,  attach  such  property.®  But  if  the  creditor  did  not 
know,  and  by  the  use  of  reasonable  diligence,  could  not  have 

1  Day  V.  Elmore,  4  Wis.  190.  *  Hoffman  r.  Beclitel,  52  Pa.  St.  190. 

^Tinkum    v.    Duncan,     1    Grant's  'Backus  r.  Shipherd,  11  Wend.  G29. 

Cas.  (Pa.)  228;  Teller  v.  Bembeim,  3  Aldrich  v.  Chubb,  35  Mich.  350.    See, 

Phila.  (Pa.)  299.  also,  on  this  subject,  Nichols  v.  Allen, 

^Voorhies  v.  Atlee,  29  Iowa,  49  per  22  Minn.  283. 

Cole,  C.  J.  6  White  t-.  Case,  13  Wend.  543. 


113  LIABILITY    OF    SUEETY    GENERALLY. 

ascertained  the  facts  wliicli  would  have  authorized  an  attachment, 
then  he  is  not  chargeable  with  negligence,  if  he  does  not  cause 
an  attachment  to  be  issued.^  If  the  pi-ior  parties  are  solvent,  but 
live  in  another  state,  and  have  no  property  in  the  state  where  the 
creditor  resides,  it  has  been  held  that  the  creditor  need  not,  in  the 
exercise  of  due  diligence,  gursue  such  prior  parties  in  such 
other  state.^  If  the  creditor  causes  an  attachment  to  be  levied 
on  the  property  of  the  principal,  but  fails  to  collect  the 
money  because  the  attachment  is  defectively  served,  he  does 
not  use  due  diligence,  and  the  guarantor  is  discharged.^ 
A  delay  on  the  part  of  the  creditor  in  bringing  suit  against  the 
previous  parties  for  upwards  of  six  months;*  for  seven  months;* 
and  for  seventeen  months;^  have  been  held  to  be  unreasonable, 
and  not  the  exercise  of  due  diligence.  Where  a  guaranty  that 
certain  notes  then  due  were  good,  was  made  April  21st,  1841,  and 
no  demand  was  made  on  the  parties  primarily  liable  till  July  29th, 
1S42,  and  no  notice  of  default  was  given  the  guarantor  till  Feb. 
29th,  1844,  it  was  held  that  due  diligence  had  not  been  used,  and 
the  guarantor  was  not  bound.''  A  guaranty  made  April  10th, 
was  as  follows :  "  I  warrant  the  within  note  good  and  collectible, 
until  the  1st  day  of  July."  Suit  was  commenced  by  the  holder, 
April  12th,  and  he  could  have  obtained  judgment  in  April,  and 
the  money  could  have  been  made,  but  in  consequence  of  his  neg- 
ligence he  did  not  get  judgment  until  September,  when  the  money 
could  not  be  made.  Held,  the  guarantor  was  not  bound.'  The 
institution  of  a  suit  against  the  principal  six  days  after  the  matur- 
ity of  a  note,  and  ]Di'osecuting  it  diligently  to  judgment,  has  been 
held  to  be  due  diligence.^  The  same  thing  was  held  where  judg- 
ment had  been  obtained  against  the  principal,  and  an  execution 
against  his  property  had  been  returned  nulla  hona  two  days  after 
the  suit  against  the  guarantor  was  commenced.'"  In  the  spring 
of  1860,  a  guaranty  of  a  note  due  the  first  of  the  following  Sep- 
tember was  made.  From  the  time  the  note  became  due,  till  1865, 
the  State  was  engaged  in  war,  and  no  debts  could  be  collected, 

'  Forest  v.  Stewart,  14  Ohio  St.  246.  «  Burt  v.  Horner,  5  Barb.  (N.T.)  501. 

'^  Towns  r.  Farrar,  2  Hawks  (Xor.  ''Beeker  v.  Saunders,  6  Ired.  Law, 

Car.)  163.  (Nor.  Car.)  380.     See,   also.  Mains  v. 

2  Beach  v.  Bates,  12  Yt.  68..  Haight,  14  Barb.  (N.  Y.)  76. 

*  Craigr  v.  Parkis,  40  New  York,  181 .  ^  ^T^geler  v.  Lewis,  11  Vt.  265. 

*Penniman  v.  Hudson,  14  Barb.  (N.  ^  Foster  v.  Barney,  3  Vt.  60. 

Y-)  o79.                                           .  10  Woods  V.  Sherman,  71  Pa.  St.  100. 


PEOCEEDIXGS   AGAINST   TEIXCIPAL    KOT    NECESSARY.  119 

and  upon  the  ending  of  tlie  war  the  principal  became  insolvent. 
No  suit  was  brought  upon  the  guaranty  till  1S6T.  Held,  due 
diligence  had  been  used,  and  the  guarantor  was  bound.^  So, 
where  suit  was  not  brought  against  the  principal  for  ten  months, 
but  he  was  all  the  time  insolvent,  it  was  held  that  the  guaran- 
tor was  chargeable,  although  the  guaranty  was  such  that  suit  with- 
in a  reasonable  time  must  have  been  commenced  against  the  prin- 
cipal. The  insolvency  of  the  principal  in  such  ease  has  a  bearing 
upon  the  question  as  to  what  is  a  reasonable  time.^  The  question 
of  due  diligence,  when  the  facts  are  not  disputed,  has  been  held  to  be 
one  of  law  for  the  court.'  It  has  also  been  held  to  be  a  question 
of  fact  for  the  jury.*  And  again,  it  has  been  held  to  be  a  mixed 
question  of  law  and  fact,  which  must  be  passed  upon  by  the  jury 
under  the  instructions  of  the  court.*  This  latter  seems  the  most 
reasonable  view,  and  the  one  best  supported  by  legal  analogy. 

§  86.  When  neither  previous  proceedings  against  principal 
nor  his  insolvency  necessary  to  charge  guarantor. — ^Vhen  the 
terms  of  a  guaranty  of  payment  fix  the  time  within  which  the 
payment  shall  be  made,  if  the  payment  is  not  made  within  the 
time  prescribed,  tliere  is  a  breach  of  the  guaranty^  and  no  steps 
need  be  taken  against  the  principal,  nor  need  his  insolvencj"  be 
shown,  in  order  to  charge  the  guarantor.  This  was  held  where 
the  defendant  gave  an  order  for  lumber,  to  be  delivered  to  a  third 
person  which  specified:  "I  will  see  you  paid  between  this  and 
the  closing  of  the  year:" '  Where  a  bond  due  on  a  certain  day  was 
guarantied  as  follows:  "For  value  received,  we,  the  undersigned, 
guaranty  the  payment  of  the  within  bond,  according  to  its 
terms:"'  Where  the  guaranty  was  for  the  payment  of  a  note 
"when  due:"®  And  where  the  promisee,  in  a  negotiable  note, 
payable  in  six  months,  sold  it,  having  made  and  signed  the  fol- 
following  indorsement:  "I  guarantee  the  payment  of  the  within 
note  in  six  months.'-  ^     Where  a  state  guarantied  the  "  punctual 

^  Kinyoii  r.  Brock,  72  Xortli  Car.  (Pa.)    79;     Jolinston  r.    Chapman,  3 

554.  Pen.  &  Watts.  (Pa.)  13;  Woods  v.  Sher- 

^Bashford  v.  Shaw,  4  Ohio  St.  264;  man,  71  Pa.  St.  100. 
Gallagher  r.  White,  31  Barb.  (N.  Y.)  «  Backus  v.  Shipherd,  11  Wend.  629. 

92.  « Cochran  v.  Daw.son,  1  Miles  (Pa.) 

»  Burt  V.  Horner,  5  Barb.  (N.T.)  501 ;  276. 
Battle  i:  Blake,   1   Dev.  Law,  (Nor.  f  Roberts  «;.  Riddle,  79  Pa.  St.  468. 

Car.)  381.  «  Campbell  v.  Baker,  46  Pa.  St.  243. 

*  Rudy  V.  Wolf,  16   Serg.  &  Rawle,  »  Cobb  v.  Little,  2  Greenl.  (Me.)  261. 


120  LIABILITY   OF   SUKKTY   GEXEKALLT. 

payment  of  tlie  interest"  on  certain  bonds  of  a  city,  it  was  held 
that  the  state  was  liable  immediately  upon  the  default  of  the  city, 
without  any  proceedings  being  had  against  it.  The  court  said 
that  wliile  a  guarantor  Avas  usually  only  liable  after  due  diligence 
had  been  used  to  collect  from  the  principal,  yet  the  intention  in 
each  particular  ease  must  prevail,  and  in  this  case  it  was  evident- 
ly the  intention  that  the  state  should  become  liable  immediately 
upon  the  default  of  the  city.*  A  guaranty  commenced  as  fol- 
lows :  "For  a  valuable  consideration  I  hereby  guaranty  the 
prompt  payment  of  *  "  (certain  notes — describing  them),  and 
concluded:  "And  I  hereby  obligate  myself  as  firmly  for  the 
prompt  payment  thereof,  as  if  I  had  signed  the  same;"  held,  the 
guarantor  was  liable  immediately  upon  default  by  the  principals.' 
AVhere  the  payee  of  a  negotiable  note,  after  it  was  due,  indorsed 
it  as  follows  :  "  I  guaranty  the  payment  of  this  note,  and  costs, 
if  any  are  made  on  it,"  it  was  held  that  the  guarantor  might  be 
sued  at  once,  and  it  was  not  necessary  to  proceed  against  the 
principal,  or  show  his  insolvency.^  Where  the  indorsement  of  a 
note  by  the  payee  thereof  was  "  I  guaranty  the  payment  of  the 
within,"  it  was  held  that  no  demand  on  the  principal  or  notice 
of  his  default  was  necessary  to  charge  the  guarantor.  The  court 
said:  "A  guaranty  of  payment  like  the  one  in  question  is  not 
conditional,  but  an  absolute  undertaking  that  the  maker  will  pay 
the  note  when  due."  *  It  has  also  been  held  that  the  guaranty 
of  "  payment"  of  the  debt  of  another,  is  broken  as  soon  as  the 
principal  is  in  default  without  more,  the  distinction  drawn  being 
betM'een  a  guaranty  that  the  principal  will  pay  and  a  guaranty 
that  he  is  solvent.  He  may  not  pay  and  yet  be  solvent/  In  all 
cases  of  guaranty  of  the  payment  of  the  debt  of  another,  whether 
the  guarantor  is  immediately  liable  upon  the  default  of  the  prin- 
cipal without  more,  depends  upon  the  terms  of  his  contract  as 
construed   by  the   court.°     "Where  a  note  is  transferred   by  a 

'Arentsu.  Commonwealth,  18  Gratt.  *  Brown  r.   Curtiss,  2  New  York, 

(Va.)  750.  225,  per  Bronson,  J.;  see  also,  on  this 

"Blackbume  v.  Boker,  1  Pa.  Law  subject,  Heaton  v.  Hulbert,  3  Scam. 

Jour.   Rep.    15;  for  a  case  holding,  (111.)  489. 

that  if  a  party  was  liable  at  all  he  was  ^  Wren  v.  Pearce,  4  Smedes  &  Mar. 

only  secondarily  liable,  see  Richwine  (Miss.)  91;  see,  also,  Bank  of  New  York 

r.  Scovill  ,54  Ind.  150.  r.  Livingston,  2  Johns,  Cas.  409. 

'Burnham  v.   Gallentine,    11    Ind.  « In  Pennsylvania  it  is  held  that  a 

""^'  contract  of  guaranty  creates  only  a  con- 


WHEN   WRITING    DOES    NOT   AMOUNT   TO    GUAKANTY.  121 

debtor  to  a  creditor  in  payment  of  a  debt,  with  a  guaranty  tliat  it 
is  good  as  gold  and  will  be  paid  when  due,  and  the  note  is  in  fact 
worthless  for  want  of  consideration,  the  guaranty  is  broken  as 
soon  as  made,  and  may  be  sued  upon  immediately.'  A  guar- 
anty of  a  lease  was  :  "I  hereby  guaranty  and  become  security 
for  the  faithful  performance  of  '"  the  party  of  the  second 
part  in  the  above  indenture."  Held,  the  guarantor  was  liable 
immediately  upon  the  default  of  his  principal.^  The  same  thing 
was  held  where,  upon  the  back  of  a  paper  providing  for  the  de- 
livery on  demand  of  certain  shares  of  stock,  the  following  was 
written  :  "  I  hereby  become  security  of  *  for  the  fulhllment  of 
the  within  obligation." ' 

§  87.  ■When  a  writing  does  not  amount  to  a  guaranty — Instan- 
ces.— A  party  wrote  to  others  as  follows  :  "  I  have  the  pleasure 
of  recommending  to  you  ray  friend  *  as  a  person  in  whom 
confidence  can  be  placed.  I  am  due  him  $400,  but  it  is  inconven- 
ient for  me  to  raise  the  money  just  now,  should  you  give  him 
time  on  the  machine  till  *  it  will  confer  a  favor  on  me  and  you 
may  rest  assured  that  the  money  will  be  forthcoming  at  the  prop- 
er time."  A  machine  was  sold  on  the  strength  of  this  letter. 
Held,  the  writer  was  not  liable  for  the  price  of  the  machine. 
There  was  no  promise  to  pay  and  no  fraud.*  Plaintiffs  had  given 
credit  to  McC.  for  goods,  but  had  not  delivered  tliem,  whereupon 
the  defendant  wrote  to  the  plaintiffs  :  "  McC.  wishes  you  to  send 
down  his  stove,  for  he  wants  to  put  it  up  to-morrow  morning.  He 
is  good  for  the  amount  he  got  from  you."  Held,  the  defendant 
was  not  liable  for  the  goods  sold.  His  letter  contained  no  prom- 
ise to  pay,  and  was  a  mere  declaration  that  one  who  had  obtained 

tingent  liability,  which  becomes  abso-  decided,  from  the  fact  that  a  person  to 

lute  by  due  and  unsuccessful  diligence  whom  a  certain  designation,  such  as 

to  obtain  satisfaction  from  the  princi-  "guarantor"  applied,  has  been  held  to 

pal,  or  by  circumstances  that  excuse  the  same  liability  as  his  class  generally, 

diligence;  Gilbert  v.  Henck,  30  Pa.  St.  the  special   terms  of   his   agreement 

205.     In  Illinois  ?  guarantor  is  held  to  being  overlooked, 

be  liable  immediately  upon  default  of  '  Koch  v.  Melhorn,  25  Pa.  St.  89. 

his  principal.     Heaton  i'.  Hulbert,  3  'Smeidel  «.  Lewellyn,  3  Phila.  (Pa.) 

Scam.  489.     Close  attention  should  in  70. 

every  case  be  paid  to  the  terms  of  the  ^  Ashton  v.  Bayard,  71  Pa.  St.  139; 
contract  of  the  person  who  becomes  to  similar  effect,  see  Prentiss  v.  Gar- 
responsible  for  the  debt  of  another,  by  land,  64  Me.  155. 
whatever   name  he   may  be  called.  ^  Case  t?.  Luse,  28  Iowa,  527. 
Cases  have  sometimes  been  improperly 


123  LIABIUTY   OF    SURETY    GENERALLY. 

credit  was  good.*  Tlie  delendunt  delivered  the  following  letter 
to  the  plaiiitift':  ''Let  *  have  what  goods  he  may  want  ou  four 
months,  and  he  will  pay  as  usual."  Held,  this  was  not  a  guaranty, 
but  at  most  an  expression  of  confidence,  that  the  party  purchas- 
ing would  pay  for  the  goods  bought,  and  there  being  no  ambi- 
:,'uity  about  it,  there  was  no  occasion  to  resort  to  the  surrounding 
circumstances,  or  the  relations  of  the  parties,^  Certain  soldiers 
purchased  goods  of  a  merchant  which  were  charged  to  the  jjersons 
purchasing  them,  and  bills  were  made  out  to  them.  Across  the 
face  of  each  bill  was  written  the  word  "accepted,"  and  the  name 
of  the  brigade  quartermaster  was  signed  thereto.  Held,  the 
quartermaster  was  not  liable  for  the  bills;  the  word  "  accepted"  did 
not  import  a  guaranty.  If  a  guaranty  had  been  intended,  it  would 
have  been  as  easy  to  have  written  the  word  "  guarantied,"  as  the 
word  '•  accepted.'^ 

§  88.  "When  a  writing  does  amount  to  a  guaranty — Instances. 
— A  party  wrote  on  the  back  of  a  promissory'  note  as  follows  : 
"I  assign  this  note  to  '^  and  indorse  tiie  prompt  payment  of  it." 
Held,  that  the  word  "  indorse  "  meant  "  guaranty  "  and  that  the 
party  was  bound  as  guarantor.  Tlie  special  indorsement  w^as 
made  either  to  restrict  or  enlarge  the  liability  of  the  indorser.  It 
was  not  used  to  restrict  it.  "  The  w-ord  [indorse]  must  be  con- 
strued wdth  reference  to  the  words  "prompt  payment"  in  the 
same  clause  of  the  sentence,  and  when  thus  interpreted  it  is 
obvious  that  the  word  "  indorse  "  was  used  in  its  broadest  popu- 
lar sense,  which  is  sometimes  synonymous  with  the  word  '  guar- 
anty.' "  *  In  articles  for  the  purchase  of  land  the  purchaser 
covenanted  to  pay  for  the  same  in  notes  "  such  as  he  would  be 
responsible  for."  Held,  this  agreement  amounted  to  a  guaranty 
of  such  notes  as  he  transferred  in  payment  for  the  land.'  A  let- 
ter written  by  a  party  to  merchants  with  whom  he  had  been  in 
the  habit  of  dealing,  introducing  to  them  his  brother,  who  was  a 
stranger,  stating  that  the  brother  was  going  to  their  city  to  pur- 
chase goods,  and  requesting  them  to  introduce  him  to  some  of 
the  houses  with  which  the  writer  dealt,  "  with  assurance  that 
any  contract  of  his  will  and  shall  be  promptly  paid,"    is  a  guar- 

'  Kimball  r.  Roye,  9  Richardson  La\7  6-v\rard  v.  Ely,  1  Dev.  Law  (Nor. 

(So.  Car),  295.  Car.)  372.     As  to  what  amounts  to  a 

» Eaton  V.  Mayo,  118  Mass.  141.  grnaranty,     see,     also,    Westphal    v. 

» Hatch  r.  Antrim,  51  111.  106.  Moulton,  45  Iowa,  163. 
*  Tatum  V.  Bonner,  27  Miss.  760. 


GUAKANTY  OF  OYEKDUE  KOTE.  123 

antj,  and  binds  tlie  writer  to  payment  for  the  goods  sold.  Tlie 
court  said:  ''As  a  ^-uaranty  is  regarded  as  a  mercantile  instru- 
ment, it  is  not  to  be  interpreted  by  any  strict  technical  rules  of 
construction,  but  by  what  may  iliirly  be  presumed  to  have  been 
the  intention  and  understanding  of  the  parties."  '  H  held  a 
mortgage  on  G's  land  to  secure  a  debt  presently  due,  and  C  held 
a  mortgage  of  the  equity  of  redemption  of  the  same  land.  0 
wrote  to  H,  that  he  was  "  willing  to  agree  to  see  him  paid  " 
$500,  for  G  on  account  of  G's  mortgage  to  H,  within  sixteen 
months.  Held,  this  was  not  a  mere  proposal  for  an  arrangement, 
but,  under  the  circumstances,  a  promise  to  pay.  The  court  said 
the  intention  was  plain,  and  "  the  courts  never  catch  at  words 
where  the  meaning  is  clear."  ' 

§89.  Guaranty  of  payment  "■when  due"  of  bverdue  note  and 
of  void  certificate  of  deposit,  valid. — A  note  was  made  payable  in 
three  years  from  date,  and  after  the  expiration  of  that  time  a 
23arty  covenanted  that  it  should  be  paid  "  according  to  its  tenor." 
It  was  contended  that  the  contract  was  impossible  of  fulfillment, 
and  not  binding.  But  the  court  said:  "  The  contract  is  to  be  con- 
strued with  reference  to  the  state  of  things  then  known  to  the 
parties  as  existing,  and  it  being  thus  known  to  them  that  the  day 
of  payment  of  the  note  had  already  passed,  the  parties  must  be 
understood  to  be  contracting  with  reference  to  a  note  overdue, 
and  the  guaranty  was  equivalent  to  a  stipulation  for  the  payment 
of  a  note  pa^-able  on  demand." '  The  same  thing  was  held  when, 
on  the  back  of  an  overdue  note,  a  guaranty  was  indorsed  for  the 
payment  of  the  note  "  when  due."  *  A  guaranty  of  payment 
upon  a  negotiable  note,  over  the  signature  of  the  indorser,  is,  in 
the  absence  of  proof,  presumed  to  have  been  written  at  the  same 
time  as  the  signature."  Principal  and  surety  signed  a  note  pay- 
able to  a  bank  ten  days  after  date.  The  principal,  without  the 
knowledge  of  the  surety,  left  the  note  with  the  bank  as  collat- 
eral for  what  he  then  owed  or  might  thereafter  owe  it.  Suit 
was  brought  on  the  note  by  the  bank  against  the  surety,  and  the 
only  claim  of  the  bank  was  for  money  advanced  the  principal 
after  the  note  was  due.     Held,  the  surety  was  not  liable.     He 

1  Moore  v.  Holt,  10  Gratt  (Va.)  284,  ^Qj-ocker  v.  Gilbert,  9  Cusli.  131. 

per  Lee  J.  *Gunn  v.  Macligan,  28  Wis.  158. 

"  Cclyin  r.  Henley,    6    Leigli  (Va.)  *Gilmant'.  Lewis,  15  Me.  452. 
85,  per  Cabell,  J. 


124:  LIABILITY    OF    SURETY    GENERALLY. 

was  by  the  face  of  the  note  only  liable  for  its  amount  at  the  end 
of  ten  days,  and  this  was  a  very  different  thing  from  standing  as 
a  continuing  guarantor.'  The  party  to  whom  a  certificate  of  de- 
posit was  issued,  transferred  it  to  another,  who  had  no  connection 
with  and  was  ignorant  of  the  circumstances  attending  its  origin, 
witii  a  guaranty  of  the  payment  thereof.  The  certificate  was  void 
for  matters  dehors  its  face.  Held,  the  guarantor  was  liable  for 
the  amount  of  the  certificate.  The  court  said,  the  guaranty  was 
in  effect  a  re2)resentation  that  the  instrument  or  claim  was  j)er- 
fectly  valid,  as  well  as  a  promise  to  pay  it." 

§  90.  When  surety  for  rent  liable  if  tenant  holds  over — Burn- 
ing of  house,  and  landlord  getting  insurance,  does  not  discharge 
surety  for  rent. — A  lessor  by  a  lease  commencing,  "  I  agree  to 
and  with  the  said  J  to  lease  to  him,"  demised  to  J  certain  prem- 
ises, and  by  the  same  phrase,  agreed  in  the  same  instrument,  at 
the  option  of  J,  to  lease  him  the  premises  for  another  je&r  upon 
the  same  terms  and  conditions.  The  defendant,  by  a  covenant 
next  following  in  the  same  instrument,  the  stipulation  for  another 
year,  agreed  "  that  in  case  the  said  J  shall  neglect  or  refuse  'to 
pay  the  aforesaid  rent  in  the  manner  aforesaid,  I  will  pay  the 
same  within  ten  days  thereafter;"  held  that  the  defendant  was 
liable  for  the  second  year's  rent  as  well  as  the  first.^  The  same 
thing  was  held  wliere  a  lease  was  for  one  year,  but  contained  this 
provision:  "  This  contract  is  to  be  renewed  for  three  consecutive 
years,  if  it  is  fulfilled  to  the  satisfaction  of  both  parties,"  and  the 
defendant,  whose  name  was  not  mentioned  in  the  lease,  wrote  at 
the  bottom  of  it,  "  security  for  Frederick  S.  Gaylord,"  the  lessee.* 
The  plaintiff,  by  a  lease  which  contained  no  stipulation  for  a 
renewal,  demised  to  J  a  house  for  one  year,  at  a  certain  rent,  pay- 
able quarterly,  and  it  was  provided  that  J,  before  the  expiration 
of  the  term,  should  give  one  quarter's  notice  of  his  intention  to 
quit.     The  defendant,  by  a  separate  instrument,  guarantied  the 

'Bank  of  St.  Albans  v.   Smith,  30  ^Deblois    v.    Earle,    7    Rhode    Is. 

Vt.  148.  26. 

'Purdy  V.  Teters,  35  Barb.  (N.Y.)  *  Deckers.  Gaylord,  8  Hun.  (N.  Y.) 

239.  For  a  case  holding  that  if  a  guar-  110;    to  same    effect,    see    Dufau  r. 

anty  is  made  ultra  vires,  and  the  pa-  Wright,  25  Wend.  636.   Holding  guar- 

per  guarantied  afterwards,  comes  to  an  tor  of  rent,   reserved  by  defective 

the  guarantor's  possession,  and  is  is-  lease,  liable  for  rent  reserved  if  lessee 

sued  by  it  with  the  guaranty  uncan-  occupies  the  premises,   see    Clark    v. 

ccled,  the  guaranty  is  binding,  see  Ar-  Gordon,  121  Mass.  330. 
not  p.  Erie  R.R.  Co..  67  New  York,  315. 


STJKETY    CONCLUDED    BY    RESULT   OF    LITIGATION.  125 

faithful  performance  of  tlie  covenants"  of  the  lease;  "  also  the 
punctual  payment"  of  the  rent.  J  did  not  give  the  notice,  and 
held  over.  Held,  the  guarantor  was  not  liable  for  any  rent  after 
the  expiration  of  the  first  year.'  A  rented  a  house  and  lot  to  B, 
and  C  became  surety  on  the  lease.  The  house  was  destroyed  by 
fire,  and  A  had  insurance  on  it  to  its  full  value,  which  he  got,  and 
refused  to  rebuild.  Held,  that  neither  B  nor  C  were  discharged 
from  the  payment  of  rent  by  these  facts.  Having  agreed  to  pay 
the  rent,  they  were  obliged  to  do  so,  even  though  the  house  was 
destroyed,  and  A  was  under  no  obligation  to  insure  for  their 
benefit.' 

§  91.  "When  surety  concluded  by  result  of  litigation  betw^een 
other  parties.— If  the  effect  of  the  obligation  of  the  surety  is  that 
he  shall  be  bound  by  the  result  of  litigation  between  other  parties, 
he  is,  in  the  absence  of  fraud  and  collusion,  concluded  by  such  re- 
sult. Thus,  a  party  gave  bond  with  sureties  in  a  chancery  suit, 
to  abide  the  decree  of  the  Superior  Court.  A  decree  was  finally 
entered  in  said  court,  which  the  principal  endeavored  to  have  set 
aside,  alleging  fraud  in  obtaining  the  same.  Under  the  circum- 
stances of  the  case,  it  was  held  that  the  principal  could  have  no 
relief,  and  that  the  sureties  stood  in  no  better  position.  The 
court  said  they  had  undertaken  to  abide  the  event  of  the  suit,  and 
must  do  so.  The  sureties  stood  in  no  better  position  than  the 
principal,  subject  to  the  single  exception  that,  if  a  judgment  or 
decree  had  been  procured  by  collusion  between  the  principal  and 
the  creditor,  the  sureties  would  not  be  bound  thereby.^  A  party 
arrested  for  a  debt  fraudulently  contracted,  gave  bond  with  surety, 
which  provided  "  that  if  the  fraud  complained  of  shall  be  estab- 
lished, the  said  *  security  shall  be  liable  for  the  debt  of  the  com- 
plaining creditor."  The  fraud  was  established  by  verdict  and 
judgment,  by  which  the  amount  of  the  debt  was  also  established. 
Held,  the  surety  was  concluded  by  the  judgment,  even  as  to  the 
amount  of  the  debt.*  A  lease  provided  that  the  time  when  the 
rent  commenced  should  be  determiued  by  arbitrators,  which  was 

^  Gadsen  v.   Quackenbush,   9  Rich.  terminating'  the  tenancy,  even  though 

Law  (So.  Car.)  222.     See,  also,  on  this  the  tenancy  is  afterwards  continued, 

subject.  Brewer  v.  Knapp,  1  Pick.  332.  See  Tayleur  v.   Wildin,  Law  Rep.  3 

^Kingsbury   v.    Westfall,    61    New  Exch.  303. 
York,    356.     Holding    guarantor    for  « Riddle  r.  Baker,  13  Cal.  295. 

rent,  on  tenancy  from  year  to  year  dis-  *Keane  v.  Fisher,  10  La.  An.  261. 

charged,  if  the  landlord  gives  notice 


12(5  LIABITJTr   OF    StJKETY    GENERALLY. 

done  and  a  certain  amount  was  thus  ascertained  to  be  due.  There 
was  a  surety  on  the  lease  who  became  responsible  for  the  rent  for  one 
vear,  according  to  the  terms  of  the  lease.  The  surety  being  sued 
for  the  amount  found  due  by  the  award,  it  was  held  that  in  the 
absence  of  collusion  or  fraud,  the  surety  was  concluded  by  the 
award  and  could  not  show  there  was  in  fact  no  rent  due.*  A 
surety  signed  a  bond  with  the  claimant  of  some  property.  An- 
other party  gave  the  surety  a  bond,  conditioned  to  save  him  harm- 
less from  loss  or  damage  on  account  of  the  bond  he  had  executed. 
In  a  suit  on  the  last  bond  against  the  maker  thereof,  the  plaintiif 
offered  in  evidence  a  writ  and  judgment,  by  which  he  had  been 
adjudged  to  pay  $100  on  account  of  signing  the  first  bond.  Held, 
this  was  sufficient  to  authorize  a  recovery,  and  he  was  not  obliged 
to  show  the  evidence  by  which  the  judgment  had  been  ob- 
tained.^ 

§  92.  When  surety  for  debt  liable  for  additional  damages. — 
"When  such  is  the  effect  of  his  obligation,  the  surety  for  a  debt  is 
also  bound  for  stipulated  damages.  Thus,  a  note  provided  for 
the  payment  of  twenty  per  cent,  per  annum  on  its  amount,  as 
liquidated  and  agreed  damages,  if  it  was  not  paid  at  maturity. 
The  following  guaranty  was  written  on  the  back  of  the  note:  "  For 
value  received,  we  guaranty  the  payment  of  the  within  note 
when  due:  "  Held,  the  guarantors  were  liable  for  the  damages,  for 
they  were  as  much  a  part  of  the  note  as  any  other.^  So,  sureties 
on  a  promissory  note,  which  stipulates  "that  a  reasonable  sum, 
to  be  fixed  by  the  court,  for  attorney's  fees,  shall  be  allowed  and 
taxed  as  costs  against  the  parties  making  the  notes,"  are  liable 
for  such  attorney's  fees."  A  statute  provided  that  interest  at  the 
rate  of  ten  per  cent,  might  be  contracted  for;  but  if  usury  was 
contracted  for,  the  creditor  should  only  recover  the  principal  sum, 
and  judgment  for  ten  per  cent,  against  the  debtor,  and  in  favor 
of  the  State,  should  be  entered  for  the  benefit  of  the  school  fund. 
Suit  was  brought  against  a  principal  and  surety  on  a  note,  and 
the  surety  set  up  and  established  usury:  Held,  judgment  should 
be  entered  against  both  principal  and  surety,  and  in  favor  of  the 
State,  for  the  ten  per  cent.  The  statute  did  not  except  sureties, 
and  the  court  would  not.°     A  surety  who  guaranties  the  punctual 

•Binsse  v.   Wood,   37  New  York,  ^Qi-j^iiey^   Capen,  72  111.  11. 

^26.  *  First  National  Bank  of  Fort  Dodge 

*  Spratlin  v.  Hudspeth,  Dudley,  (Ga.)  v.  Breese,  39  Iowa,  640. 

1^'  *  Mcintosh  t\  Likens,  25  Iowa,  555. 


LIABILITY    BEYOND    PENALTY    OF    BOND.  127 

payment  of  "  tlie  interest"  on  a  money  bond  in  which  there  is  no 
stipulation  for  interest,  is  liable  for  interest  accruing  after  the 
bond  becomes  due.  As  there  was  no  interest  on  the  bond  when 
the  guaranty  was  made,  the  guarantor  must  have  intended  to 
become  liable  for  the  interest  to  accrue  after  the  bond  was  due.' 
§  93.  Whether  surety  liable  beyond  penalty  of  his  bond. — 
The  surety  on  a  bond  cannot  generally  be  held  liable  for  any  sum 
greater  than  the  penalty  thereof.^  A  surety  in  a  stipulation  giv- 
en on  the  release  from  attachment  of  the  property  of  a  respon- 
dent in  a  suit  in  admiralty,  cannot,  where  the  stipulation  is  in  a 
sum  certain,  be  compelled  to  pay  more  than  that  sum,  although 
the  stipulation  is  conditioned  to  pay  such  sum  as  shall  be  award- 
ed to  the  libellant  b}^  the  final  decree  in  the  suit.'  Where  the 
surety  on  a  sheriff's  official  bond  has  paid  under  judgments  ren- 
dered on  it  the  amount  of  the  penalty,  he  can  be  held  responsi- 
ble for  no  more.  "  The  principle  which  limits  the  liability  of  the 
surety  by  the  penalty  of  his  bond,  inheres  intrinsically  in  the 
character  of  his  engagement.  He  does  not  undertabe  to  perform 
the  acts  or  duties  stipulated  by  his  principal,  and  would  not  be 
permitted  to  control  their  performance,  and  could  not  where  his 
principal  was  a  public  officer."*  "When,  however,  the  surety  is 
bound  to  the  same  extent  as  the  principal,  and  is  himself  in  de- 
fault, a  sum  in  excess  of  the  penalty  of  the  bond,  but  not  exceed- 
ing the  legal  rate  of  interest  on  the  amount  for  the  payment  of 
which  he  is  in  default,  may  be  recovered  against  him  as  damages 
for  the  detention.*  "  It  may  be  a  reasonable  doctrine  that  a  sure- 
ty, who  has  bound  himself  under  a  fixed  penalty  for  the  payment 
of  money,  or  some  other  act  to  be  done  by  a  third  person,  has 
marked  the  ntmost  limit  of  his  own  liability.  But  when  the 
time  has  come  for  him  to  discharge  that  liability,  and  he  neglects 
or  refuses  to  do  so,  it  is  equally  reasonable,  and  altogether  just, 
that  he  should  compensate  the  creditor  for  the  delay  which  he 

^Hamilton  v.  Van    Rensselaer,   43  ^ Lewis    v.  Dwight,    10    Conn.    95; 

Barb.  (N.  Y.)  117.  State  v.  Wayman,  2  Gill.   &   Johns. 

^Clarki'.  Bash,  3  Cowen,151;  Fair-  (Md.)   254;    Harris    v.  Clap,  1  Mass. 

lie  V.  Lawson,  5  Cowen,  424;  Oshiel  v.  308;  Judge  of  Probate  v.  Heydock,  8 

DeGraw,  6  Cowen,  63.  New  Hamp.   491;    Mayor    and    City 

^  Brown  r.  Burrows,  2;  Blatchford,  Council  of  Natchitoches  v.  Redmond, 

840.  28  La.  An.  274. 

^Leggett  V.   Humphreys,  21    How. 
(U.  S.)  66,  per  Daniel,  J. 


12S  LIABILITY   OF    SURETY   GENERALLY. 

lias  interposed.  ••  Tlie  question,  in  sliort,  is  not  what  is  the  meas- 
ure of  a  surety's  liability  under  a  penal  bond,  but  what  does  the 
law  exact  of  him  for  an  unjust  delay  in  payment,  after  his  liabil- 
ity is  ascertained  and  the  debt  is  actually  due  from  him." '  It 
lias  been  held  that  an  official  bond  does  not  bear  interest  from  the 
breach,  or  the  demand,  or  the  commencement  of  the  suit  for  the 
penalty,  and  that  the  sureties  cannot  be  held  for  more  than  the 
amount  of  the  penalty.'' 

§  94.  When  surety  on  note  liable  if  it  is  not  discounted  by- 
party  to  whom  it  is  payable. — AYhen  a  surety  becomes  a  party  to 
a  nef^otiable  promissory  note,  payable  to  a  particular  person,  with 
the  design  of  raising  money  to  be  used  by  the  principal  for  a  cer- 
tain purpose,  and  the  note  is  not  discounted  by  the  payee,  but  is 
discounted  by  another,  and  the  money  is  applied  to  the  purpose 
intended,  it  is  generally  held  that  the  surety  is  liable  for  the  note.' 
To  the  objection  that  the  surety  has  a  right  to  choose  his  creditor, 
it  is  answered  that  if  the  payee  had  discounted  the  note,  he  might 
the  next  moment  have  transferred  it  to  another,  and  so  the  surety 
cannot  in  such  case  choose  his  creditor,  and  as  the  object  which 
the  surety  had  in  view  has  been  accomplished,  he  is  in  nowise 
prejudiced,  and  is  bound.  A- being  principal,  and  B  surety,  exe- 
cuted a  note  payable  to  a  bank,  for  the  purpose  of  enabling  A  to 
raise  money  on  it  for  his  benefit.  The  bank  refused  to  discount 
the  note  for  A,  and  C  being  told  by  A  that  the  bank  would  dis- 
count the  note,  himself  advanced  the  money  on  it  to  A,  and  took 
it  to  the  bank,  which  again  refused  to  discount  it.  C  then  got 
the  bank  to  discount  the  note  for  him,  and  afterwards  B  gave  the 
bank  notice  not  to  discount  it.  Held,  the  bank  must  be  consid- 
ered as  having  adopted  the  payment  of  the  note  made  by  C,  and 
could  sue  on  the  note  for  C's  use.'*  In  another  case,  J  being  in- 
debted to  P,  gave  him  a  note  signed  by  himself  and  sureties,  pay- 
able to  a  bank,  with  the  agreement  between  J  and  P  that  P  should 
get  it  discounted,  and  apply  the  proceeds,  and  if  it  could  not  be 

'Brainard  v.  Jones,  18  New  York,  Blair,  4  Ala.  613;  Bank  of  Newbury  «. 

35,  per  Comstock,  J.  Richards,   35  Vt.   281 ;   Browning  v. 

'State  V.   Blakemoro,    7    Heiskell,  Fountain,  1  Duvall,   (Ky.)  13;  Ward 

(Tenn.)  638.  v.  Northern  Bank  of  Kentucky,  14  B. 

» Keith  V.  Goodwin,  31  Vt.  268;  Star-  Mon.  (Ky.)  283;  Thrall  v.  Benedict,  13 

rett  V.  Barber,  20  Me.  457;  Bank  of  Vt.  248. 

Middlebury  v.  Bingham,  33  Vt.  621;  *Bank   of  Burlington  v.   Beach,  1 

Planters'    and   Merchants'    Bank   v.  Aiken  (Vt.)  02. 


WHEN   NOTE   APPLIED   TO    PUEPOSE   INTENDED.  129 

discounted,  it  should  be  returned  ;  but  tliis  agreement  was  not 
known  to  the  sureties.  P  could  not  get  the  note  discounted,  but 
left  it  with  the  bank  as  collateral  security  for  a  debt  he  owed  it, 
and  so  informed  J,  who  made  no  objection ;  after  the  note  came 
due,  it  was  bj  agreement  between  J  and  P,  iind  without  the 
sureties'  knowledge,  applied  on  J's  indebtedness  to  P,  and  P 
thereafter  prosecuted  a  suit  which  the  bank  had  commenced 
for  his  benefit.  Held,  that  as  the  note  had  accomplished  the 
purpose  intended,  the  sureties  were  bound.'  A  as  principal 
and  B  as  surety,  signed  a  note  payable  in  six  months  to  C,  for 
the  pv.rpose  of  enabling  A  to  get  cloth  to  the  amount  of  the  note 
from  C.  A  eot  cloth  from  C  amounting:  to  more  than  half  the 
note,  and  C  not  having  enough  of  the  cloth,  D  furnished  the  rest 
on  an  understanding  between  A,  C  and  D,  that  2^  jpro  rata  share 
of  the  note  sliould  inure  to  the  benefit  of  D.  Afterwards  C 
transferred  the  entire  note  to  D,  and  he  sued  on  it.  Held,  B  was 
liable.^  Principal  and  surety  executed  a  note  with  the  expecta- 
tion that  with  it  the  principal  would  buy  a  yoke  of  oxen  of  A,  and 
give  the  surety  a  mortgage  on  them  for  his  indemnity.  The 
principal  did  not  buy  the  oxen  of  A,  but  bought  a  yoke  of  oxen 
of  B,  he  knowing  that  the  note  had  been  given  to  buy  the  oxen 
of  A,  but  not  knowing  of  the  agreement  about  the  mortgage. 
The  oxen  purchased  from  B  did  not  come  to  the  face  of  the  note, 
and  $6.25  was  credited  on  the  back  of  the  note  when  it  was  de- 
livered to  B.  Held,  both  the  principal  and  surety  were  liable  on 
the  note.  It  was  used  for  the  purjDOse  intended,  and  the  credit 
on  its  back  was  not  an  alteration  of  it  any  more  than  a  credit  at 
any  other  time  would  have  been.'  A  bought  a  horse  of  B,  and 
in  payment  for  it  gave  his  note,  with  two  sureties,  payable  to  a 
bank,  or  order.  It  was  intended  to  raise  money  on  the  note  to 
pay  for  the  horse,  but  there  was  no  evidence  that  the  sureties 
knew  the  purpose  for  wliich  the  note  was  given.  The  bank  re- 
fused to  discount  the  note,  and  before  it  became  due,  the  sureties 
notified  the  bank  not  to  discount  it.  After  the  note  became  due, 
the  bank  indorsed  it  to  B,  who  had  always  held  it,  and  he  sued 
npon  it.     Held,  the  sureties  were  liable.    The  Court  said  "  It  (tlie 

'  Bank  of  Montpelier  r.  Jojaier,  33      ilar  effect,  see  Perry  v.  Armstrong,  39 
(Vt.)  481;  to  same  effect,  see  Smith  v.      New  Hamp.  583. 
Moberlj',  10  B.  Mon.  (Ky.)  266;  to  sim-  -  Lyman  v.  Sherwood,  20  Vt.  42. 

'Laub  V.  Rutld,  37  Iowa,  617. 

9 


130  LIABILITY    OF    SURETY   GENERALLY. 

note)  has  not  followed,  perhaps,  the  precise  channel  that  was  antic- 
ipated, but  it  has  not  been  turned  from  a  strictly  legal  channel."  * 
Principal  and  surety  executed  a  note  to  a  married  woman  for  some 
land,  and  she  alone  made  a  deed  for  it,  which  was  void.  After- 
wards she  died,  leaving  her  property,  by  will,  to  her  husband. 
The  principal  became  insolvent,  and  after  the  note  became  due, 
discovering  that  his  title  was  bad,  applied  to  the  husband,  who 
made  him  a  deed  for  the  land.  Held,  the  surety  was  liable  on 
the  note.  The  principal  could  not  repudiate  it,  having  received 
the  consideration,  and  as  the  surety  had  executed  the  note  for  the 
purpose  of  purchasing  the  land,  and  it  had  been  used  for  that 
purpose,  he  was  bound.*  The  condition  of  a  bond  that  the  prin- 
cipal shall  pay  "all  notes,  acceptances,  and  other  obligations 
whatever,"  given  by  him  for  his  indebtedness,  is  applicable  not 
alone  to  his  several  notes,  but  also  to  notes,  if  given  for  his  con- 
templated indebtedness,  in  which  other  parties  are  joint  promi- 
sors with  him.'  A  made  a  note  payable  to  B,  and  C  executed 
the  note  with  A  as  joint  maker,  the  object  being  to  raise  money 
for  A's  use.  B  did  not  discount  the  note,  nor  indorse  it,  but  D 
did  advance  money  on  it  to  A,  and  sued  A  and  C  on  it  in  the 
name  of  B.  The  court  held  C  liable,  and  said  the  law  was  that 
if  C  signed  the  note  with  the  understanding  that  it  was  to  be 
passed  to  B,  and  no  one  else,  then  he  was  not  liable.  But  if  C 
signed  as  suretj^  with  the  general  purpose  of  enabling  A  to  raise 
money  on  tlie  note,  without  limiting  him  as  to  the  person  to 
whom  he  was  to  pass  it,  he  would  be  liable  to  any  one  to  whom 
it  was  passed.* 

§  95.  When  surety  on  note  not  liable,  if  it  is  discounted  by- 
party  other  than  payee. — When  a  surety  signs  a  negotiable  note 
M'ith  the  principal  for  a  j^articular  purpose,  and  it  is  diverted 
from  that  ^purpose  by  the  principal,  and  the  I3arty  taking  it  has 
then  knowledge  of  facts  sufficient  to  charge  him  with  notice  of 
such  diversion,  the  surety  is  not  bound. ^     But  if  the  j)arty  tak- 

'  Cross  V.  Rowe,  22  New  Hamp.  77,  der  representations  of  the  maker  that 

per  Eastman,  J.  it  was  payable  to  a  bank,  when  it  was 

.     '^  Campbell  v.  Moulton,  30  Vt.  667.  in  fact  payable  to  an  individual,  con- 

^Parham  Sew.  Mach.  Co.  v.  Brock,  stitutes  no  defense  to  the  note  in  an  ac- 

113  Mass.  194.  tion  thereon  by  the  payee,  when  it 

*  Perkins  v.  Ament,  2  Head,  (Tenn.)  does  not  appear  that  he  had  any  know- 

110.     The  fact  that  a  person  was  in-  ledge  of  the   alleged  fraud.     Wright 

duced  to  sign  his  name  as  surety  to  a  v.  Flinn,  33  Iowa,  159. 

negotiable  note  without  reading  it,  un-  *  Brown  v.  Taber,  6  Wend.  566. 


WHEN    NOTE    NOT    APrLIED    TO    PURPOSE    INTENDED.  131 

ing  tlie  note  liave  no  siicli  notice,  express  or  implied,  and  take 
the  note  in  good  faith  and  for  valne,  the  surety  will  be  bound 
to  him  notwithstanding  sncli  diversion.'  A  party  became  suret}^ 
on  a  note  for  $100,  payable  to  a  bank,  for  the  pnrj^ose  of  pni'- 
chasing  lumber  for  the  principal  with  $75  of  the  mone^^,  and  pay- 
ing $35  of  it  to  the  surety  and  his  partner  for  a  debt  due  them 
from  the  principal.  The  bank  never  discounted  the  note,  but  an- 
other creditor  of  the  principal,  to  whom  he  owed  $22,  took  out  that 
sum  and  gave  the  principal  the  balance  in  money.  Suit  was 
brought  against  the  surety  in  the  name  of  the  bank,  for  the  use 
of  the  party  discounting  the  note,  and  it  was  held  he  was  not  lia- 
ble. "  From  the  fact  that  the  defendant  was  willing  to  become 
surety  to  a  particular  party  to  raise  money  for  particular  objects, 
it  would  be  unreasonable  to  infer  that  he  consented  to  assume  a 
general  liability  to  any  party  and  for  any  purpose."  The  note 
Jiad  been  di^^erted  from  the  purpose  intended,  and  the  party  who 
took  it  had  notice  thereof,  from  the  fact  that  on  its  face  it  was 
payable  to  the  bank.^  So,  where  principal  and  surety,  for  the 
purpose  of  raising  money  for  the  principal's  family,  signed  a  note 
payable  to  the  order  of  a  bank,  which  the  bank  refused  to  dis- 
count, and  the  principal  gave  it  to  a  creditor  of  his  to  pay  a  pre- 
existing debt,  it  was  held  the  surety  was  not  liable.  The  fact  that 
the  note  was  payable  to  the  bank  was  sufficient  notice  to  the  cred- 
itor that  the  note  was  made  for  the  purpose  of  raising  money, 
and  if  he  had  inquired,  he  would  have  found  that  his  taking 
the  note  would  defeat  the  very  purpose  for  which  the  surety 
signed.^  Principal  and  sureties  signed  a  note  paj^able  to  a  bank, 
with  the  imderstanding  that  it  should  be  discounted  at  the  bank. 
The  note  never  was  discounted  by  the  bank,  but  was  sold  by  the 
principal  to  one  Cook,  who  sued  it  in  the  name  of  the  bank. 
Held,  the  sureties  were  not  liable.  The  court  said  tlie  sureties 
miirht  have  been  willino;  to  be  bound  to  the  bank,  but  to  no  one 
else.  "  The  reasons  for  such  a  preference  may  be  perfectly  satis- 
factory and  prudential.  Then,  as  the  sureties  "^  agreed  to  be 
bound  to  the  bank  only,  and  signed  the  note  with  the  understand- 
inw  that  it  was  to  be  delivered  to  and  discounted  bv  the  bank,  and- 
that  they  were  not  to  be  bound  unless  it  should  be  so  delivered 
and  discounted,  the  sale  and  delivery  of  the  note  to  Cook,  without 

^  McWilliams    v.    Mason    31    New  "^  Manufacturers'  Bank  v.   Cole,   39 

York,  294.  Me.  188. 

8  Russell  V.  Ballard,  16  B.  Mon.  (Ky.)  201. 


132  LIABILITY    OF    SURETY    GENERALLY. 

tlieir  knowledge  or  assent,  liad  no  binding  operation  as  to  them."  * 
The  same  thing  was  held  where  the  note  was  payable  to  a  bank 
or  order,  and  it  was  discounted  by  a  third  person,  the  fact  that 
the  note  was  payable  to  the  bank  being  held  suilicient  notice 
to  such  third  person."  It  has  been  held  that  an  accommodation 
drawer  of  a  bill  of  exchange,  made  payable  to  a  particular  bank 
for  the  purpose  of  being  discounted  by  the  bank  named,  cannot  be 
held  liable  on  the  bill  to  a  third  person  who,  after  discount  by 
the  bank  had  been  refused,  took  the  bill  from  the  principal  for 
value,  and  also  that  such  drawer  cannot  be  held  liable  to  the  bank 
Avhere  it  subsequently  discounts  the  bill  for  such  third  person, 
with  notice  of  the  suretyship  of  the  drawer.^  In  holding  that  a 
note  by  principal  and  surety,  made  payable  to  a  bank,  but  dis- 
counted by  a  third  person,  did  not  bind  the  surety,  the  court  said : 
"He  might  be  willing  to  lend  his  name  to  procure  .a  loan  from  a 
party  who  would  indulge  him — who  would  advance  to  his  prin- 
cipal tlie  full  face  of  the  note— when  he  would  be  utterly  unwil- 
ling to  go  security  to  one  who  was  his  personal  enemy,  or  who 
would  exact  harsh  terms  or  heavy  interest  of  his  principal."  ^ 
Again,  it  has  been  held,  tliat  if  a  note  payable  to  a  particular  per- 
son, is  signed  by  a  surety  and  sold  to  another  person,  the  surety 
is  not  liable  thereon,  without  his  express  or  implied  consent,  but 
such  consent  maybe  inferred  from  the  course  of  business  between 
the  parties.  This  was  held,  "  not  upon  the  ground  that  there  has 
been  a  change  of  contract  prejudicial  to  him,  but  that  there  has 
been  no  completed  contract  at  all;  that  there  was  no  delivery  to 
the  only  party  to  whom  the  note,  by  its  very  terms,  was  to  be 
delivered,  and  therefore  that  the  contract  which  was  merely  un- 
dertaken to  be  made,  never  took  effect."  ^  From  the  cases  refer- 
red to,  it  appears  there  is  some  conflict  of  authority  on  this  sub- 
ject.    Unless  the  party  suing  on  the    note    is  the  hona  fide 

'Conway  v.  Bank  of  U.  S.  6  J.  J.  ^Prescott  v.  Brinsley,  6  Cush.  233; 

Marsh,  (Ky.)  128,  per  Robertson,  C.  J.  to  same  effect,  see  Allen  v.  Ayers,  3 

The  precise  opposite  of  this  was  held,  Pick.  293. 

in  Fai-mers  and  Mechanics' Bank  v.  ^Knox  Co.  Bank  v.  Loyd's  Admr. 

Humphrey,  36  Vt.  554;  Briggs  v.  Boyd,  18  Ohio  St.  353. 

37  V"t.  534.     It  seems  that  in  these  two  ^Chnton  Bank  v.  Ayres,    16  Ohio, 

last  cases  the  surety  was  held  liable  on  283,  per  Birchard,  C.  J. 

a  contract  he  never  consented  to  make,  ^  Chase  v.  Hathorn,  61  Me.  505,  per 

and  which  the  taker  of  the  note  should  Peters,  J. 
have    known  he  never  consented  to 
make. 


GUARAXTOK  ON  GENERAL  GUARANTY.  133 

holder  tliereof  for  value,  without  notice,  and  has  the  right  to  sue 
thereon  in  his  own  name,  there  seems  to  be  much  force  in  the 
objection  that  the  surety  has  a  right  to  choose  his  creditor. 
A  reason  not  already  suggested,  is,  that  while  the  payee,  if  he 
had  discounted  the  note,  would  have  had  the  power  to  sell  it  to 
another,  yet  he  might  not  have  done  so.  In  every  instance, 
much  will  depend  upon  the  form  of  the  paper  and  the  special  cir- 
cumstances of  the  case. 

§  96.  "When  guarantor  on  general  guaranty,  or  on  guaranty 
addressed  to  another,  liable  to  person  acting  on  it. — Where  a 
letter  of  credit  is  general,  addressed  to  all  persons,  any  one  to 
whom  it  is  presented  may  act  upon  and  enforce  it.*  A  letter  of 
credit  addressed  to  one  with  the  design  that  it  be  shown  to  others 
to  induce  them  to  act  upon  it,  may  be  sued  on  by  such  others  in 
their  own  names,  if  acted  upon  by  them.*  An  action  may  be 
maintained  by  the  several  partners  of  a  firm,  upon  a  guaranty 
given  to  one  of  them,  if  there  be  evidence  that  it  was  given  for 
the  benefit  of  all.^  D,  who  was  a  merchant  in  the  country,  deal- 
ing in  all  sorts  of  merchaadise,  being  .about  to  purchase  a  stock 
of  goods  in  'New  York,  received  from  A,  who  had  been  his 
partner,  a  guaranty  addressed  to  no  person  named,  by  which  A 
agreed  to  be  responsible  for  what  goods  D  might  purchase  in  New 
York:  Held,  A  was  liable  to  every  person  from  whom  D  pur- 
chased goods  in  pursuance  of  the  guaranty;  that  the  guaranty 
was  not  limited  to  the  first  person  who  sold  goods  on  its  credit; 
and  that  A  was  liable  for  goods  sold  on  the  credit  usual  in  such 
cases.*  Defendant  signed  a  letter  of  credit  addressed  to  F,  as 
follows:  "  As  you  request,  we  are  willing  to  help  you  in  the  j)ur- 
chase  of  a  stock  of  goods.  We  will,  therefore,  guaranty  the  pay- 
ment of  any  bills  which  you  may  make  under  this  letter  of  credit 
in  Baltimore,  not  exceeding  fifteen  hundred  dollars:"  Held,  that 
any  person  advancing  goods  to  F,  upon  the  faith  of  the  guaranty, 
could  maintain  an  action  thereon  against  the  defendant  as  guaran- 
tor.^  A  letter  of  credit  was  as  follows :  "  James  McElroy,  Dear  Sir : 

1  Birckhead  v.  Brown,  5  Hill  (N.  Y.)  ^  Garrett  v.  Hai^dley,  4  Barn  &  Cress. 

G34;  afRi-med  on  error,  2  Denio.  375.  664. 

See,  on  this  subject,  Wheeler  v.  May-  •*Lowrj-  v.  Adams,  22  Vt.  160. 

iield,   31    Texas,     395;     Mayfield    v.  5(ji.igij  j._  Remberfe,  2  Eichardson, 

Wheeler,  37  Texas,  256.  N.  S.  (So.   Car.)  410.    To  the  same 

*  Lonsdale  ik   Lafayette    Bank,    18  effect,   see  Manning  v.  Mills,   12  Up. 

Oliio,  126.  Can.  Q.  B.  R.  515. 


13-i  LIABILITY    OF    SURETY    GLNEKALLT. 

Mr.  John  Ticlieiior  is  goini^  to  the  city  to  purchase  goods.  '''  I 
will  guaranty  the  payment  of  such  debts  as  he  may  contract  for 
the  purchase  of  goods  on  credit."  McElroy  was  at  that  time  a 
clerk  in  a  store,  but  had  no  store  of  his  own.  Tichenor  bouglit 
goods  from  four  different  houses  on  the  strengtli  of  the  guaranty, 
the  whole  amounting  to  a  less  sum  tlian  that  mentioned  in  the 
guaranty.  Held,  the  guarantor  was  liable  for  all  the  bills.  The 
court  said  it  was  apparent  from  the  face  of  the  guaranty  that 
McElroy  was  not  expected  to  furnish  the  goods.  "  It  is  a  general 
letter  of  credit  addressed  througli  McElroy,  a  common  friend,  to 
the  merchants  in  the  city."^  Defendant  addressed  to  J.  Y.  &  Co. 
the  following  guaranty :  "  In  consideration  of  your  filling  the  orders 
for  goods  from  your  Birmingham  house  of  J.  C.  &  Co.,  say  the 
spring  importations,  I  hereby  hold  myself  responsible  for  and  guar- 
anty the  payment  of  the  same  to  you."  J.  Y.  &  Co.  were  the  agents 
in  Xew  York  for  the  Birmingham  house  referred  to.  The  goods  hav- 
ino:  been  furnished  to  J.  C.  &Co.,  it  was  held  that  the  Binning- 
ham  house  could  sue  on  the  guaranty,  if  intended  for  their  bene- 
fit, and  whether  so  intended  might  be  proved  by  parol.''  A 
guaranty  was  as  follows :  "Captain  Charles  Drummond:  Dear 
Sir:  My  son  "William,  having  mentioned  to  me  that  inconse- 
quence of  your  esteem  and  friendship  for  him,  you  had  caused 
and  placed  property  of  your  and  your  brother's  in  his  hands  for 
sale,  and  that  it  is  probable  from  time  to  time  you  may  have 
considerable  transactions  together  ;  on  my  part  I  think  proper  to 
guaranty  to  you  the  conduct  of  iny  son,  and  shall  hold  myself  liable, 
and  do  hold  myself  liable,  for  the  faithful  discharge  of  all  his  en- 
gagements to  you,  both  now  and  in  future.  George  Prestman." 
Held,  this  guaranty  extended  to  and  covered  a  debt  incurred  by 
William  Prestman  to  Charles  Durand,  and  his  brother,  Pichard 
Durand,  as  partners,  it  being  proved  that  the  transactions  to 
which  the  letter  related  were  with  them  as  partners,  and  that  no 
other  brother  of  Charles  Durand  was  interested  therein.  The 
court  said,  that  according  to  the  ordinary  construction  of  the 
words  of  the  guaranty,  they  were  intended  to  apply  to  a  partner- 
ship liability.^  In  all  these  cases  the  guaranty,  although  ad- 
dressed to  no  one,  or  to  the  purchaser,  or  to  a  third  j^erson,  or  to 

'  Benedict  v.  Sherill,  Lalor's  Sup.  to  -Van Wart ».  Carpenter,  21  Up.  Can. 

Hill  &  Denio,  219.  Q.  B.  R.  320. 

^  Drummond  t'.  Prestman,  12  Wheaton,  515. 


GUARANTOR    ONLY    LIABLE    TO    PARTY   ADDRESSED.  135 

one  of  several,  was  held  to  be  intended  for  the  party  advancing 
upon  it,  and  the  guarantor  was  for  that  reason  held  liable. 

§  97.  When  guarantor  not  liable  to  any  one  except  party  to 
whom  guaranty  is  addressed. — Usually  a  guaranty  when  addressed 
to  a  particular  party,  can  only  be  acted  upon  and  enforced  by 
such  party.'  A  guaranty  was  on  its  face  addressed  to  "Col. 
Smith  &  Pilgrim,"  but  on  its  back  it  was  addressed  to  Smith 
only.  The  day  previous  to  the  date  of  the  letter  the  j)artnership 
of  Smith  &  Pilgrim  was  dissolved,  and  Smith  alone  sold  the 
goods.  Held,  the  guarantor  was  not  liable.  The  face  of  the 
guaranty  only  could  be  considered,  and  not  the  address  on  the 
back.  As  there  was  no  ambiguity  about  the  guaranty,  parol  evi- 
dence could  not  be  received  to  vary  it.^  A  letter  of  credit  was 
addressed  to  A.  After  the  date  of  the  letter,  A  entered  into 
jjartnership  with  B,  and  A  &  B  furnished  the  goods.  Held,  the 
writer  of  the  letter  was  not  liable  for  the  goods  so  furnished. 
A's  manner  of  doing  business  may  have  been  different  from  that 
of  the  firm,  or  the  writer  of  the  letter  may  have  expected  favors 
from  A,  which  the  firm  would  not  grant  him.^  In  another  case, 
in  which  the  same  thing  was  decided,  the  court  said:  "  It  is  a 
case  of  pure  guaranty,  a  contract  which  is  said  to  be  stricfissimi 
juris,  and  one  in  which  the  guarantor  is  entitled  to  a  full  dis- 
closure of  every  point  which  would  be  likely  to  bear  upon  his 
disj^osition  to  enter  into  it.  '"  He  has  a  right  to  prescribe  the 
exact  terms  upon  which  he  will  enter  into  the  obligation,  and  to 
insist  on  his  discharge  in  case  those  terms  ara  not  observed.  It 
is  not  a  question  whether  he  is  harmed  by  a  deviation  to 
which  he  has  not  assented.  He  may  plant  himself  upon 
the  technical  objection,  this  is  not  my  contract,  no}i  in  haeo 
foedere  veiiiy*  A  of  New  York  gave  a  letter  of  credit  to 
B,  addressed  to  C,  in  Albany,  requesting  him  to  deliver 
goods  to  B  on  the  best  terms,  to  a  certain  amount.  C, 
instead  of  delivering  the  goods  himself,  gave  B  a  letter  to  D,  in 

^Taylor  v.  Wetmore.  10  Ohio,  490;  see  Stevenson  v.  McLean,  11  Up.  Can. 

Bleeker  v.  Hyde,  3  McLean,  279.  C.  P.  R.  208;  Allison  v.  Eutledge,  5 

^  Smith  V.   Montgomery,   3  Texas,  Yerg.  (Tenn.)  193;  Bussier  v.  Chew,  5 

199.  Phil.  (Pa.)  70.    A  letter  of  credit  ad- 

^  SoUee  V.  Meugy,  1  Bailey  Law  (So.  dressed  to  P.  &  Co.  will  not  authorize 

Car.)  620.  advances  by  P  alone,  after  the  firm  is 

*Banis  V.   Barrow,  61  New  York,  dissolved,     Penoyer    r.    Watson,    16 

89,  per  Dwight,  C;   to   same  effect,  Johns.  100. 


136  LIABILITY    OF    SURETY    GENERALLY. 

Geneva,  requesting  hi  ra  to  deliver  goods  to  B  to  the  same  amount, 
and  engaging  to  be  responsible.  D  delivered  the  goods  to  B.  In 
an  action  bj  0  against  A,  for  the  amount,  it  was  held  he  was  not 
liable.  A  had  the  right  to  stand  on  the  terms  of  his  contract, 
and,  moreover,  D  may  not  have  given  B  as  good  terms,  or  sold 
the  goods  as  cheap  as  C  would  have  done.'  Two  firms,  composed 
of  the  same  members,  were  doing  business  in  the  same  city,  but 
in  difierent  parts  thereof,  the  name  of  one  firm  being  Taylor,  Gil- 
lespie &  Co.,  and  that  of  the  other  David  B.  Taylor  &  Co.  A 
party  knowing  these  facts,  gave  a  letter  of  credit  addressed  to 
"Messrs.  Taylor  &  Gillespie,"  and  the  firm  of  David  B. 
Taylor  &  Co.  gave  credit  on  it.  Held,  the  guarantor  was  not 
liable.  The  guaranty  was  intended  for  Taylor,  Gillespie  &  Co., 
and  the  other  firm  could  not  recover  on  it.  A  partnership  con- 
sists of  something  besides  its  individual  members.  It  has  its 
stock  in  trade,  place  of  business,  books,  bills,  papers,  accounts, 
etc.*  A  letter  of  credit  purported  to  bind  the  guarantors  to  "any 
person  in  Macon,  Georgia,  who  may  feel  disposed  "  to  advance 
goods.  Without  the  writer's  consent,  this  was  changed  by  insert- 
ing Grifiin  in  place  of  Macon,  and  the  goods  were  bought  in 
Griffin.  Held,  the  guarantors  were  not  bound.'  A  mortgage 
was  given  to  secure  the  debt  of  a  third  party  to  the  extent  of 
$800,  so  long  as  the  creditor  should  contimie  to  sell  goods  to  such 
third  party.  Subsequently,  the  creditor  transferred  his  business 
to  other  persons,  with  whom  the  debtor  continued  to  deal  for 
some  time.  During  the  course  of  such  dealing,  the  debtor  paid 
in  more  than  sufficient  to  cover  the  amount  of  the  mortgage. 
Held,  the  payments  must  be  applied  to  the  oldest  items  of  ac- 
count, and  that  the  mortgage  was  discharged.*  A  guaranty  com- 
menced: "C.  C.  Trowbridge,  Esq.,  President,  Detroit,  Mich.," 
and  there  was  no  further  designation  of  the  party  addressed; 
money  was  advanced  on  the  guaranty  by  the  Michigan  State  Bank, 
of  which  Trowbridge  was  i^resident.  Held,  it  might  be  shown  by 
parol  that  the  guaranty  was  intended  for  the  bank.  The  court 
said  that  a  guaranty  follows  the  general  rule  of  law  with  refer- 
ence to  simple  contracts,  "  which  is  that  they  may  be  sued  either 
in  the  name  of  the  nominal  or  of  the  real  party,     *     and  in  the 

1  Walsh  V.  Bailie,  10  Johns.  ISO.  » Johnson  v.  Brown,  51  Ga.,  498. 

^  Taylor  v.  McUlung's  Exr.  2  Hous-  ^  Eoyal  Canadian  Bank  v.  Payne,  19 

ton,  (Del.)  24.  Grant's  Ch.  K.  (Canada)  180. 


SUEETY    FOE    SEVEEAL    KOT   LIABLE   FOE    OXE.  137 

present  case,  tlie  letter  of  credit  being  addressed  to  tlie  person  as 
president,  and  the  showing  him  president  of  the  ^^hiintiffs'  bank, 
and  of  no  other  institution,  renders  it  certain  that  it  was  intended 
fo]'  the  phiintifFs'  benefit."  ^ 

§  98.  Surety  for  several  not  liable  for  one — Surety  for  one 
not  liable  for  several. — The  sureties  on  a  bond  conditioned  tiiat 
tlie  principal  shall  pay  for  all  purchases  made  b}'  hini  from  the 
obligee,  are  not  liable  for  purchases  made  from  the  obligee  bj  a 
partnership  of  which  the  jjrincipal  has  subsequently  become  a 
member.^  A  wrote  to  B  as  follows  :  "Anything  you  can  do  for 
the  bearer,  Major  S.  M.  IN^eill,  whom  I  introduce  as  my  friend,  will 
be  done  for  me,  he  being  a  merchant  in  Clinton.  P.  S.  If  you 
should  accept  for  Mr.  ^N'eill  for  one  thousand  dollars,  I  will  be 
bound  by  this  note."  On  the  strength  of  this,  B  guarantied  two 
drafts  of  Hardesty  &  JSTeill.  Held,  A  was  not  liable  for  such  guar- 
anty. A  "  might  have  been  willing  to  become  the  security  of  ISTeill, 
and  not  of  Hardesty  and  I^feill.  The  engagement  was  personal  as 
to  Neill."  ^  The  defendant  executed  a  bond  as  surety  to  an  insur- 
ance company  for  the  fidelity  of  A,  who  was  appointed  an  agent 
of  the  company  at  Adelaide,  and  who  was  about  to,  and  after- 
wards did,  enter  into  partnership  (as  merchants)  with  B,  also  an 
agent  of  the  company  at  that  place.  The  condition  of  the  bond 
w^as,  that  A  should  well  and  truly  account  for  all  money  received 
by  him.  Held,  the  defendant  was  not,  under  this  bond,  respon- 
sible for  money  received  by  the  firm  A  &  B,  notwithstanding 
he  was  aware  at  the  time  he  signed  the  bond  that  A  was  about 
to  become  B's  partner.*  A  bond  given  by  the  defendant  to  the 
plaintiff,  recited  that  A  had  been  appointed  agent  for  the  plain- 
tiff, and  was  conditioned  for  A's  good  behavior.  At  the  time  the 
bond  was  given  tlie  defendant  knew  that  A  was  to  be  employed 
only  as  a  partner  with  B.  Afterwards  A  &  B  received  money, 
as  partners,  for  which  they  did  not  account.     Held,  the  defend- 

^  Micliig-an  State  Bank  v.  'Pecks,  28  admissible.     Smitli  t\  Montgomery,  3 

Vt.    200,    per    Redfield,    C.   J.     For  Texas,  199. 

other  cases    where     parol    evidence  ^Parham  Sew.  Mach.  Co.  i'.  Brock, 

was    held     admissible,     see    Wads-  113  Mass.  194 ;    to   same  eiFect,  see 

worth  V.  Allen,   8   Gratt.  (Va.)   174;  Shaw  v.  Vandusen,  5  Up.  Can.  Q.  B. 

Garrett     v.     Handlej',     4    Barn.    &  R.  353. 

Cres.  664;  Van  Wart  v.  Carpenter,  21  ^  Bell  v.  Norwood,    7  Louisiana  ( 1 

Up.  Can.  Q.  B.  R.  320;  Drummond  v.  Curry)  95,  per  Bdlard,  J. 

Prestman,  12  Wheaton,  515.     If  there  *Montefiore  v.   Lloyd,    15  J.   Scott 

is  no  ambiguity,  parol  evidence  is  not  (N.  S.)  203. 


13S  LIABILITY    OF    SURETY   GENERALLY. 

ant  was  not  liable  for  tlie  monej  so  received  by  A  &  B.  "  "Wlien 
a  party  makes  himself  surety  for  the  conduct,  not  of  A  &  B,  but 
of  A,  the  stronger  proof  you  give  that  he  knew  the  relation  in 
which  A  and  B  stood  to  each  other,  the  stronger  you  make  the 
inference  arising  from  his  mentioning  only  A.'"  A  guaranty  for 
goods  to  be  sold  to  a  firm  will  not  cover  advances  made  to  one 
member  of  the  partnership  after  its  dissolution."  If  a  guaranty 
is  given  to  a  partnership,  and  one  of  the  members  dies,^  or  there 
is  a  change  in  the  membership  of  the  firm  in  any  other  way,* 
the  guaranty  will  not  cover  any  advances  which  are  afterwards 
made.  A,  B  and  C  were  partners,  as  bankers,  and  their  partner- 
ship articles  provided  that,  if  any  one  of  them  died,  the  legal 
representatives  of  such  one  might  take  his  place  in  the  business. 
D  agreed  to  become  responsible  "  for  all  sums  of  money,  not 
exceeding  £20,000,  which  were  then,  or  should  afterwards  become 
due  (from  E)  to  A,  B  and  C,  and  the  survivors,  or  survivor,  of 
them,  or  the  executors  or  administrators  of  such  survivor."  A 
died,  and  his  legal  representative  became  a  member  of  the  firm. 
Held,  D  "was  not  liable  for  any  advances  made  to  E  after  the 
death  of  xV.*  A  bond  recited  that  A  and  B  were  bankers,  at 
Sunderland,  and  was  conditioned  that  they  would  remit  to  plain- 
tiif  all  such  sums  as  they,  "  or  either  of  them,"  should  draw  on 
plaintiff".  A  died,  and  B  afterwards  drew  bills.  Held,  the  surety 
on  the  bond  was  not  liable  for  such  bills.  From  the  whole 
instrument,  the  intention  appeared  to  be  to  become  responsible 
for  bills  which  the  two  partners,  or  one  of  them,  during  the 
existence  of  the  partnership,  should  draw.^  But  where  a  party 
agreed  to  guaranty  such  notes  as  should  be  indorsed  by  a  firm, 
and  the  firm  was  dissolved,  and  one  of  the  partners  was, 
by  power  of  attorney,  authorized  by  the  others  to  transact 
any  remaining  partnership  business,  it  was  held,  the  guar- 
antor was  liable  for  indorsements  made  by  such  partner  in 
the    firm     name     in     closing    up    the    j^artnership     business.'' 

'London  Assurance  Co.  v.  Bold,  6  ^Pemberfcon    r.   Oakes,   4    Russell, 

Adol.  &  Ell.   (N.  S.)  5M,  per  Lord  154. 

Denman,  C.  J.  «  Simson  v.  Cooke,  8  Moore,  588.    To 

*Cremer    v.    Higginson,    1    Mason,  similar  effect,  see  Hawkins  r.  New  Or- 

•323.  leans  Print.  &  Pub.  Co.  21)  La.  An. 

2  Holland  v.  Teed,  7  Hare,  50.  1-34. 

.     ••Spiers  v.  Houston ,  4  Biigh  (N.  R.)  '  New  Haven  Co.  Car.lr  v.  Mitchell, 

515;  Dry  r.  Davy,  2  Perry  &  Dav.  249.  15  Ct.  206. 


SUKETY    FOR   ONE    NOT   LIABLE   FOE    SEVERAL.  139 

A  j)arty  agreed  to  guaranty  the  payment  for  sncli  goods  as  should 
be  sold  to  two  partners.  A  bill  of  goods  was  so  sold,  and  imme- 
diately afterwards  the  seller  arranged  with  one  of  the  partners 
that  the  other  slionld  go  out  of  the  firm,  and  took  the  note  of  the 
remaining  partner  alone  for  the  goods,  the  note  being  payable  to 
a  third  person.  Held,  tliese  transactions  discharged  the  guaran- 
tor, as  the  whole  course  of  dealing  was  changed.'  The  guarantor 
for  goods  to  be  sold  to  a  partnership,  is  not  liable  for  goods  sold 
to  the  partnership  after  a  change  in  the  members  composing  it." 
Sureties  became  bound  for  the  performance  of  a  particular  act 
(the  sale  of  property)  by  two  persons,  one  of  whom  died,  and  the 
other  sold  the  property  and  failed  to  account  for  it.  Held,  the 
sureties  were  not  liable  for  such  failure.  They  became  sureties 
for  both  parties,  and  might  not  have  been  willing  to  become  bound 
for  the  acts  of  one  alone.^  A  gave  B  a  guaranty  for  goods  to  be 
23urchased  by  C,  to  the  extent  of  200Z.,  the  guaranty  not  being  a 
continuing  one.  C  took  in  D  as  a  partner,  and  B  sold  C  and  D 
goods  on  the  credit  of  the  guaranty  to  the  extent  of  more  than 
200Z,  and  C  and  D  failed.  Afterwards,  B  sold  C  alone  goods  on 
the  credit  of  the  guaranty.  Held,  B  could  not  recover  on  the 
guaranty  for  the  goods  sold  C  and  D,  because  they  were  not  with- 
in its  terms.  Nor  could  he  recover  for  the  goods  sold  to  C  alone, 
because  then,  by  his  own  act,  the  circumstances  of  C  were  changed, 
and  he  w^as  jointly  with  D  saddled  with  a  debt  of  more  than  200Z.'' 
A  surety  for  gas,  to  be  supplied  to  a  person  on  certain  premises, 
is  not  liable  for  gas  supplied  to  another  person  on  the  same  prem- 
ises, even  if  the  person  for  whom  he  became  responsible  did  not 
notify  the  gas  company  of  the  change  in  the  proprietorship  of  the 
premises.^  Tlie  defendant  guarantied  that  certain  parties  would 
receive  and  pay  a  certain  price  for  a  steam  engine  and  two  boil- 
ers of  a  given  capacity,  particularly  described.  By  agreement 
of  the  principals,  without  the  consent  of  the  defendant,  an  en- 
gine with  three  boilers,  and  of  greater  capacity  and  power,  at  an 
additional  j^rice,  was  substituted,  and  it  was  held  that  the  defend- 
ant was  not  liable  therefor.  The  court  said  that  the  defendants 
may  be  supposed  to  have  known  the  circumstances  of  his  princi- 

1  Bill  V.  Barker,  16  Gray,  62.  ^Shaw  v.  Vandusen,  5  Up.  Can.  Q. 

2 Backhouse  v.  HaU,  6  Best  &  Smith,  B.  R.  353. 

507.  ^  Manhattan  Gas  Light  Co.  v.  Ely, 

^  State  V.  Boon,  U  Mo.  254.  39  Barb.  (N.Y.)  174, 


140  LIABILITY    OF    SURETY   GENERALLY. 

pals,  tlieir  ability  to  pay,  the  power  of  an  eni^ine  which  could  be 
profitably  cniployed,  and  may  have  been  willing  to  guaranty  the 
contract  first  made,  and  totally  unwilling  to  guaranty  the  substi- 
tuted one.'  All  these  cases  are  illustrations  of  the  rule  that  the 
surety  will  only  be  bound  to  the  extent,  and  in  the  manner,  and 
under  the  circumstances  that  he  consented  to  become  liable.  A 
party  who  guaranties  a  note  signed  by  two,  may,  however,  under 
certain  circumstances,  be  liable  for  the  default  of  one.  Thus,  A 
and  B  signed  a  note,  B  signing  upon  the  express  condition  that 
he  should  not  be  bound  unless  0  also  signed  the  note  as  maker. 
C,  knowing  these  facts,  did  not  sign  the  note  as  maker,  but  guar- 
antied its  collection.  B,  by  suit  in  chancery,  had  his  name  strick- 
en from  the  note,  because  the  terms  upon  which  he  signed  had 
not  been  complied  with,  and  C  claimed  that  he  was  thereby  dis- 
charged from  his  guaranty.  Held,  that  as  C  knew  B  was  not 
bound  when  he  signed  the  guaranty,  it  was  the  same  as  if  he  had 
guarantied  the  note  of  A  alone,  and  he  was  liable.  "Where  the 
surety  knows  that  the  undertaking  of  the  principal  is  liable  to  be 
defeated,  he  must  be  considered  as  entering  into  his  obligation 
with  reference  to  such  a  contingency." ' 

§  99.  Surety  to  or  for  firm  not  liable  if  partners  changed — 
Surety  for  performance  of  avyard  not  liable  if  arbitrators  changed. 
— A  surety  for  the  good  behavior  of  the  clerk  of  a  sole  trader  is 
not  liable  for  his  acts  or  defaults  after  the  sole  trader  takes  in  a 
partner.^  George  Smith  was  doing  business  under  the  name  of 
George  Smith  &  Co.,  as  banker,  and  employed  Koble  as  teller  in 
the  bank,  jSToble  giving  bond  with  sureties  for  his  conduct.  Af- 
terwards Smith  entered  into  a  contract  with  AVillard  such  as  the 
court  held  constituted  them  partners.  The  firm  name  continued 
the  same,  and  Xoble  continued  teller  the  same,  and  after  the 
arrangement  with  Willard,  became  a  defaulter.  Held,  the  sure- 
ties were  Kot  liable  for  such  default.  The  court  said:  "The 
money  then  which  jS"oble  abstracted  was  not  Smith's,  but  it  be- 
longed to  Smith  and  "Willard,  Smith  alone  is  the  obligor  in  the 
bond,  and  the  sureties  only  undertook  for  the  principal  that  he 
should  act  with  fidelity  to  Smith,  when  in  his  employ  alone. 
They  never  undertook  to  answer  for  him  when  in  the  employ  of 

'  Grant  f.  Smith,  46  New  York,  93.  ^  Wright  r.  RusseU,  2  W.  Black- 

•   *  Sterns  v.  Marks,  35  Barb.  (N.  Y.)      stone,  934. 
565,  per  Morgan,  J. 


ACTS    PERFORMED    BY    PARTNERSHIP.  141 

Smith  and  Willard,  or  of  any  other  person  than  Smith." '  B,  C 
and  J,  who  were  partners,  being  appointed  agents  for  the  sale  of 
certain  books,  gave  bond  with  sureties,  conditioned  that  they 
and  the  survivors,  and  survivors  of  them,  and  such  other  person 
and  persons  as  should,  or  might  at  any  time  thereafter,  in  part- 
nership with  them,  or  any,  or  either  of  them,  act  as  agents  for 
selling  books,  would  duly  account.  J  retired  from  the  partner- 
ship, and  it  was  held  that  the  sureties  were  not  liable  for  any 
subsequent  acts  of  B  and  C."^  The  condition  o^  a  bond  recited 
that  the  obligor  had  "  taken  and  employed  *  (A)  as  a  servant, 
and  in  the  nature  of  a  clerk  to  him  *  (obligee),  and  likewise 
as  his  book  keeper;"  and  provided  that  A  should  serve  faithfully 
and  account  for  all  money,  etc.,  to  the  obligee  and  his  executors. 
Held,"  the  surety  in  the  bond  was  not  liable  for  money  received 
by  A  after  the  death  of  the  obligee,  although  he  was  continued 
in  the  same  employment  by  the  obligee's  executor.  'No  service, 
except  to  the  obligee  was  contemplated,  although  it  might  have 
become  necessary  to  account  to  his  executors.'  Two  parties 
agreed  to  leave  a  matter  in  dispute  between  them,  to  certain  arbi- 
trators named,  or  a  majority  of  them,  and  one  of  the  parties  gave 
bond  with  sureties  that  he  would  perform"  the  award.  After- 
wards, without  the  knowledge  of  the  sureties,  two  new  arbitra- 
tors were  substituted,  and  an  award  was  ffendered,  a  majority  of 
the  original  arbitrators  concurring  therein.  Held,  the  sureties 
were  not  liable  for  the  award.** 

§  100.  When  surety  for  the  acts  of  one  person  liable  if  such 
acts  performed  by  him  and  a  partner. — Under  certain  circum- 
stances a  surety  for  the  acts  of  one  person  will  be  held  liable  for 
such  acts,  even  though  they  are  performed  by  such  person  as  the 
partner  of  another.  Thus,  the  defendant  executed  a  bond  of  in- 
demnity, conditioned  that  one  F,  w^ho  had  been  appointed  by  the 
plaintiffs  their  general  agents  to  sell  sewing  machines,  should  pay 
over  the  proceeds  of  the  sales.  F,  after  his  appointment,  took  in 
a  partner.  The  plaintiffs  knew  of  this,  and  the  machines  were 
afterwards  delivered  at  the  firm's  place  of  business,  but  they  were 
all  delivered  on  the  order  of  F,  and  charged  to  his  individual  ac- 
count.    In  an  action  on  the  bond,  it  was  held,  that  while  the 

1  Barnett  v.  Smith,  17  111.  565,  per  ^  Barker  v.  Parker,  1  Durn.  &  East, 

Caton,  J.  287. 

^  University  of  Cambridge  v.  Bald-  *  Mackay  v.  Dodge,  5  Ala.  388. 
win,  5  Mees.  &  Wels.  580. 


142  LIABILITY    OF    SURETY    GENERALLY. 

surety  would  not  have  been  bound  for  tlie  acts  of  any  firm,  as 
such,  of  which  F  might  be  a  member,  yet  the  agencies  employed 
by  F  in  disposing  of  the  machines,  did  not  change  his  relations 
with  his  principals  so  long  as  they  confined  their  dealings  to  him, 
and  the  delivery  of  the  goods  at  the  place  of  business  of  the  firm 
was  not  sufficient  to  establish  that  they  changed,  or  intended  to 
change  such  relations,  as  they  could  not  have  based  a  refusal  to 
deliver  upon  the  ground  that  F  had  taken  a  partner.'  A  agreed 
with  B,  an  attorney,  to  pay  him  for  all  such  services  as  he  had 
rendered-,  or  should  render  C.  Afterwards  B  took  in  a  partner, 
and  rendered  services  for  C,  in  the  pay  for  which  his  partner  was 
entitled  to  share,  but  the  services  were  rendered  by  B:  Held,  A 
was  liable  for  the  services.  The  fact  that  B's  partner  was  entitled 
to  receive  part  of  the  money  for  the  latter  services  rendered  by 
B,  made  no  difference.^  By  law,  no  one  but  persons  licensed  for 
that  purpose  had  authority  to  sell  goods  at  auction,  and  a  licensed 
auctioneer  had  to  give  bonds.  A,  being  a  licensed  auctioneer,  gave 
bonds  with  surety,  but  was  conducting  the  business  in  the  name 
of  A  &  B  as  partners,  B  not  being  licensed:  Held,  the  sureties 
of  A  were  liable  for  goods  thus  sold  by  him.  As  no  one  but  a 
licensed  auctioneer  could  legally  sell  goods  at  auction,  if  they' 
were  properly  sold,  it  must  be  considered  the  act  of  A,  "  and  the 
obligation  which  he  aiM  his  sureties  contracted  in  consequence 
of  the  privilege  granted  to  him  by  the  government,  ought  not  to 
be  impaired  by  the  circumstance  of  his  having  conducted  the 
affairs  of  his  ofiice  with  the  aid  of  a  partner  in  the  profits,  any 
more  than  they  would  be  if  he  had  acted  by  the  assistance  of  a 
hired  clerk.  His  situation  in  relation  to  his  partner  did  not  con- 
cern the  public  who  applied  to  him  as  an  auctioneer." '  These 
decisions  do  not  controvert  the  rule  that  the  surety  for  a  single 
individual  is  not  liable  for  a  jDartnership  of  which  such  individ- 
ual is  a  member,  but  each  case,  from  its  peculiar  circumstances, 
was  held  not  to  come  within  the  rule. 

§  101.  "When  obligation  given  by  surety  to  firm,  binds  him 
after  change  in  firm. — An  obligation  given  to  a  firm,  securing  it 
against  loss  from  the  acts  or  default  of  another,  is  sometimes  held 

'Palmer  v.  Bngs,   56  New  York,  " Roberts  v.  Griswold,  35  Vt.  496. 

523.    See,  generally,  as  to  liability  of  ^Kuhn  v.  Abat,  14  Martin  (La.)  2 

guarantor   of   sewing    machine  con-       N.  S.  168,  per  Mathews,  J. 
■  tract,  Davis  Sewing  Machine  Co.  v. 
McGinnis,  45  Iowa,  538. 


OBLIGATION    GIVEN    BY    SURETY    TO    FIRM.  143 

to  bind  the  obligor  for  matters  occurring  subsequent  to  a  change 
in  the  members  of  the  firm.  Thus,  a  principal  and  three  sureties 
signed  a  promissory  note,  payable  on  demand  to  a  firm  "or  order," 
for  300 Z.  The  note  was  made  for  the  purpose  of  enabling  the 
principal  to  obtain  credit  with  the  firm.  Held,  that  the  note  be- 
ing payable  to  the  members  of  the  firm,  or  order,  and  being 
evidently  intended  to  be  a  continuing  security,  the  makers  were 
liable  upon  it,  notwithstanding  a  change  in  the  members  of  the 
firm.^  A  bond  recited  that  the  plaintiflf  "  had  agreed  to  take  one 
Philip  Jones  into  their  service  and  employ,  as  a  clerk  in  their 
shop  and  counting  house,"  and  was  conditioned  that  he  should 
account  "for  and  pay  the  plaintifis  all  sums  of  money,"  etc.  Sub- 
S3quently,  a  new  partner  was  taken  into  the  firm  of  the  plaintifi's, 
and  Jones  afterwards  made  default.  Held,  the  sureties  were  lia- 
ble for  such  default.  The  court  said  the  security  was  intended  to 
be  given  to  the  house,  as  a  house,  and  "  the  circumstance  of  tak- 
ing in  a  new  partner,  makes  no  difference,  either  as  to  the  quantity 
of  business  or  the  extent  of  the  engagement.  He  continues  to 
carry. on  the  business  of  the  plaintiffs,  and  this  contract  is  co- 
extensive with  his  continuance  in  the  house.  This  is  a  security  to 
the  house  of  the  plaintiff's,  and  no  change  of  partners  will  dis- 
charge the  obligor."^  This  decision  can  only  be  sustained  upon 
the  ground  that  it  was  the  intention  of  the  parties,  and  the  efffect 
of  the  obligation,  to  give  the  security  to  the  house  as  a  house,  the 
same  as  if  it  had  been  a  corporation,  and  regardless  of  who  might 
compose  it.  A  surety  executed  a  bond  conditioned  for  the  faith- 
ful service  of  a  clerk  to  a  railway  company.  "While  the  service 
continued,  that  company  and  another  railway  company  were 
dissolved  and  united  into  one  company,  by  a  statute  wdiich  pro- 
vided that  all  bonds,  etc.,  made  in  favor  of  or  by  the  dissolved 
companies,  should  inure  to  the  benefit  of  and  bind  the  new  com- 
pany. Held,  the  surety  was  liable  for  a  default  of  the  clerk  after 
the  union  of  the  two  companies.  The  court  placed  its  decision 
entirely  on  the  words  of  the  statute,  and  said  it  made  the  bond 
the  same  as  if  the  name  of  the  amalgamated  companies  had  been 
mentioned  therein.^     Where  a  bond  is  directed  by  statute,  to  be 

^  Pease  r. Hirst,  10  Barn.  &  Cress.  122.  'Eastern     Union    Railway   Co.   v 

*PerMansfield,C.  J.,  in  Barclay  t'.  Coclirane,    9    Wels,    Hurl.    &     Gor. 

Lucas,  1  Duni.  &  East,  291,  note;  Id.  197. 

3  Douglas,  321. 


144  LIABILITY    OF    SLEETY    GENERALLY. 

taken  by  a  cor})orate  body,  but  no  form  is  prescribed,  it  is  good, 
tliovigh  taken  in  tlie  names  of  the  individual  members  thereof  as 
obligees.' 

§  103.  Surety  not  liable  beyond  scope  of  his  obligation — 
Instances. — A  written  guaranty  of  "tlie  payments  of  all  powdgr 
consigned  "  to  a  certain  person  lor  sale,  does  not  render  tlie 
guarantor  liable  for  a  sale  to  tlie  consignee,  of  the  powder  re- 
maining unsold  upon  closing  the  account  between  the  consignor 
and  the  consignee.'  A  guaranty  of  the  payment  of  a  certain 
sum  of  money  in  consideration  of  the  building  of  a  bridge  by  a 
county,  at  a  place  then  fixed  by  a  report  of  viewers,  is  not  bind- 
ing, if  the  bridge  is  built  at  another  place.^  A  guaranty  that  O 
would  consign  the  plaintiifs  sugar  to  the  value  of  $30,000,  does 
not,  in  case  of  the  failure  of  O  therein,  bind  the  guarantors  for 
more  than  the  $30,000,  as  for  commissions  on  the  advances 
made  to  O  on  the  faith  of  the  guarantied  consignment,  and  for 
exchange,  etc.  If  O  had  consigned  the  sugar  the  guarantor 
would  not  have  been  liable  at  all,  and  his  liability  cannot  exceed 
the  stipulated  value  of  the  sugar."  A  party  guarantied  the  pay- 
ment for  gold  with  which  the  plaintiff  should  supjjly  a  goldsmith, 
for  the  purjyoses  of  his  trade.  The  plaintiff  discounted  bills  for 
the  goldsmith,  and  gave  him  for. them  j)art  gold  and  part  money. 
The  gold  was  applied  to  the  goldsmith's  trade,  but  he  did  not  in- 
dorse the  bills.  Held,  the  guarantor  was  not  liable  for  the  gold, 
so  furnished.  He  meant  only  to  pay  for  gold,  sold  the  goldsmith, 
and  this  was  not  sold  but  paid  on  the  purchase  of  bills  of  ex- 
change.' A  guarantor  of  payment  of  any  loss  which  may  arise, 
by  reason  of  the  sale  of  goods,  which  by  stipulation  between  the 
principal  parties  are  to  be  sold  M'ithin  ninety  days,  is  not  liable,  if  by 
agreement  between  such  parties,  the  goods  are  not  sold  within  that 
time,  and  the  time  for  sale  is  extended  to  one  hundred  and  eighty 
days."  A  guaranty  provided  that  the  guarantor  would  be  answer- 
able to  the  plaintifls  to  the  extent  of  5000^,  for  tlie  use  of  the 
liouse  of  S.  &  Co.  When  the  guaranty  was  given  S.  &  Co.  were 
indebted  to  the  plaintiffs,  for  which  the  plaintiffs  held  their  notes 

'  Greenfield  v.  Yeates,  2  Rawle,  (Pa.)  ^  Mercer  County  v.  Coovert,  6  Watts 

158.  &  Serg.  (Pa.)  70. 

*  Carkin  v.  Savory,  14  Gray,  528;  to  *  Dunlop  ».  Gordon,  10  La.  An.  243. 

same  effect,   see  Wilson  v.  Edwards,  "  Evans  «.  Whyle,  5  Bing.  485;    Id. 

6  Lansing  (N.  Y.)  134.  3  Moore  &  Payne,  130. 

« Fisher  v.  Cutter,  20  Mo.  206. 


NOT    LIABLE    BEYOND    SCOPE    OF    OBLIGATION.  145 

and  bills.  U]3on  receiving  tlie  guaranty  the  plaintiff's  canceled  the 
notes,  and  delivered  up  the  bills  to  S.  &  Co.,  and  S.  &  Co.  there- 
upon delivered  the  bills  and  a  new  note  back  to  the  plaintiffs, 
but  no  money  passed.  Held,  the  guaranty  only  contemplated 
future  loans  to  S.  &  Co.,  and  the  transaction  did  not  amount  to  a 
loan  which  would  charge  the  guarantor.*  The  defendant  was 
surety  by  a  bond  to  the  plaintiff  for  the  performance  of  a 
contract  by  S.,  according  to  an  agreement  which  provided  that 
S.  was  to  be  paid  by  instalments,  and  one-fourth  retained 
till  after  the  work  was  done.  The  plaintiffs  made  advances  to  S 
not  called  for  by  the  contract,  and  in  excess  of  the  work  done  by 
him.  S  failed  to  com'plete  the  work,  and  the  plaintiffs  got  others 
to  complete  it.  The  amount  paid  to  S  and  the  last  contractor 
exceeded  the  contract  price,  but  the  value  of  the  work  done  by  S 
and  the  price  paid  the  last  contractor,  did  not  together  equal  the 
contract  price.  Held,  the  plaintiff  could  recover  nothing  on  the 
•guaranty.  The  advances  made  by  him  to  S  were  made  in  his  own 
wrong,  and  he  must  lose  them.''  Sureties  for  the  faithful  perform- 
ance of  his  duties,  by  the  freight  agent  of  a  railroad  company,  are 
not  responsible  for  money  received  by  another  person  appointed  by 
the  railroad  company,  and  in  its  employ  at  the  same  station,  but 
who  is  under  the  orders  of  such  freight  agent.' 

§  103.  Liability  of  surety  or  guarantor — Special  cases. — A 
guaranty  was  as  follows:  "  I  will  be  accountable  to  you  for  pay- 
ment within  six  months  of  the  seed  order  forwarded  by  my  son, 
E,.  A.  H.,  and  also  for  payment  within  three  months  of  600  bar- 
rels of  vetches,  to  be  forwarded  by  the  first  steamer."  The  seeds 
were  furnished  and  the  vetches  were  not:  Held,  the  seeds  might 
be  recovered  for,  as  the  contract  was  not  entire.  That  portion 
concerning  the  vetclies  was  distinct  from  the  other,  to  be  paid 
for  in  a  different  time,  etc.''  The  condition  of  a  bond  executed 
by  E  to  the  F.  &  M.  Bank,  was  that  A  shall  and  will  from  time 
to  time  ask  for  and  receive  from  said  bank,  certain  sums  of 
money,  at  no  time  exceeding  $5,000.  'Now  if  said  A  shall  well 
and  truly  pay,  or  cause  to  be  paid  to  said  bank,  all  such  sums  as 
he  may  as  aforesaid  receive,  then  the  obligation  to  be  void,  etc. : 

'Glynv.  Hertel,  8  Taunton,  208.  ^C.  &  A.  R.  R.  Co.  v.  Higgins,  58 

^Warre  r.  Calvert,  2  Nev.  &  Per.       111.  128. 
126;  Id.  7  Adol.  &  Ell.  143.  *  Nash    i:   Hartland,  2  Irish  Law 

Rep.  190. 
10 


146  i.iABii.rrY  or  sukety  genekally. 

Held,  taking  the  wliole  instrument  together,  it  was  tlie  intention  of 
E  to  restrict  the  whole  amount  of  the  indebtedness  of  A  to  the 
bank,  at  any  one  time,  to  $5,000,  and  the  bank  having  allowed 
liim  to  become  indebted  in  a  larger  amount,  E  was  not  liable  at 
all.  E  may  have  thought  that  A  could  not  successfully  handle 
more  than  $5,000;  and  such  may  have  been  the  fact.  Having 
restricted  his  liability,  he  could  only  be  held  to  his  contract  as  he 
liad  made  it.'  In  a  case  very  similar  to  this,  it  was  held  that  the 
surety  was  liable  for  the  amount  specified  in  the  bond,  notwithstand- 
ing a  greater  sum  had  been  advanced.  The  court  said  if  it  was  in- 
tended  that  a  greater  advance  than  the  sum  mentioned  in  the 
bond  should  avoid,  it,  then  the  bond  should- have  said  so.'^  These 
cases  do  not  differ  in  principle.  The  court,  in  one  case,  held  that 
the  intention  of  the  surety  appeared,  from  the  instrument,  to  be 
that  he  should  not  be  bound  at  all  if  a  greater  sum  than  that  stip- 
ulated was  advanced.  In  the  other  case,  the  court  held  that  no 
such  intention  appeared.  A  guarantor  for  the  price  of  goods  or- 
dered, but  not  yet  sent,  is  not  discharged,  by  the  fact  that  the 
purchaser,  upon  receiving  the  goods,  was  dissatisfied  with  them, 
but  finally  agreed  to  keep  them  upon  the  seller  deducting  ten  per 
cent,  from  the  original  price.^  A  guaranty  of  the  payment  of  dif- 
ferent kinds  of  goods,  to  be  sold  on  a  credit  of  six  months,  does 
not  render  the  guarantor  liable  for  anything,  if  one  kind  of  the 
goods  is  sold  on  a  credit  of  four,  and  another  on  a  credit  of  six 
months.  The  guaranty  ofi^ered  was  entire,  and  if  not  accepted  as 
offered,  it  could  not  be  accepted  at  all,  and  there  was  no  con- 
tract.* Where  the  contract,  the  ^performance  of  which  is  guar- 
antied, provides  for  notes  at  four  months  to  be  renewed,  if 
desired,  for  sixty  day,  at  eight  per  cent,  interest,  the  guar- 
antor is  not  holden  for  notes  running  -six  months,  with 
interest  for  four  months,  at  seven  per  cent.,  and  thereafter  at 
eight  per  cent.;  nor  for  six  months'  notes  with  interest,  at  eight 
per  cent.,  commencing  four  months  after  date.^  So,  a  guarantor 
for  the  price  of  goods  to  be  sold  on  a  credit  of  six  months,  is  not 
liable,  if  the  goods  are  so  sold,  but  afterwards  the  term  of  credit 
is,  by  agreement  between  the  purchaser  and  seller,  lengthened  as 
to  a  part  and  shortened  as  to  another  part."     A  surety  who  agrees 

'  Farmers  and  Mechanics'  Bank  v.  *  Leeds  v.  Dunn,  10  New  York,  469. 

Evans,  4  Barb.  (N.  Y.)  487.  '  Locke  v.  McVean,  33  Mich.  473. 

'  Parker  v.  Wise,  6  Maule  &  SeL  239.  « Henderson  v.   Marvin,    31    Barb. 

"  Rice  V.  Filene,  6  AUen,  230.  (N.  Y.)  297. 


ILLEGAL  ACTS  OF  CREDITOR  OR  PRINCIPALS  AS  A  DEFENSE.      147 

to  indemnify  A  if  he  will  give  liis  drafts  at  three  months  to  B, 
,  in  order  to  enable  B  to  raise  money  to  pay  C,  is  not  liable,  if  A 
give  B  tlie  money,  instead  of  the  drafts,  to  pay  C,  and  B  with 
the  money  pays  C  The  reason  is,  that  B  became  immediately 
liable  to  A  for  the  money  so  advanced,  when,  if  the  original 
agreement  had  been  carried  out,  sucli  liability  would  not  have 
arisen  for  three  months,  and  this  time  may  have  been  of  great 
value  to  B.  It  made  no  difference  that  three  months'  time  was 
actually  given  B,  for  there  was  no  certainty  that  it  would  be 
given.  A  guaranty  as  follows  :  "  I  hereby  guaranty  the  pay- 
ment of  any  purchases  of  bagging  and  rope  which  *  may  have 
occasion  to  make  between  this  and  the  first  of  December  next," 
extends  the  liability  of  the  guarantor  to  purchases  upon  a  reason- 
able credit  made  before  the  first  of  December,  although  the  time 
of  payment  was  not  to  arrive  till  after  that  day.''  When  a  guar- 
antor agrees  to  be  responsible  for  a  bill  of  goods  to  be  sold  on 
three  months'  credit,  he  is  liable,  if  the  seller  take  the  note  of 
the  purchaser,  at  three  months,  for  the  goods.  It  was  a  credit 
of  three  months,  as  usually  understood  in  the  commercial  world, 
and  the  fact  that  the  note  had  three  days  of  grace  after  the  expira- 
tion of  the  three  months,  made  no  difierence,  as  no  business  man 
would  have  thought  of  cutting  off"  the  days  of  grace.'  A  gave 
B  the  following  guaranty:  "I  have  given  C  an  order  to  pur- 
chase cotton,  and  '••'  I  have,  in  such  case,  to  request  that  you 
will  honor  his  drafts  to  the  amount  of  those  he  may  send  to  you 
for  sale  on  my  account,  and  I  engage  that  his  bills  on  me  so 
transmitted  shall  be  regularly  accepted  and  paid."  Held,  the 
guarantor  M'as  liable  for  drafts  drawn  by  C  on  A,  and  honored 
by  B,  on  the  representation  of  C  that  they  were  for  A's  benefit, 
when  they  were  not  so  in  fact.  The  fair  construction  of  the 
guaranty  was,  that  A  would  be  liable  for  such  bills  as  C  should 
represent  he  had  drawn  on  A's  account." 

§  104.  "When  surety  cannot  set  up  illegal  acts  of  creditor  or 
principal  as  a  defense. — A  contract,  providing  for  the  return  to 
the  owner  who  had  loaned  them,  of  certain  shares  of  railroad 
stock,  and  for  the  payment  of  interest  for  their  use,  was  sio-ned 

'Bonser  f.  Cox,  6  Beavan,  110;  see,  ^Sjnith    v.    Dann,    6    Hill  (N.  T.) 

also,  4  Beavan,  379.  643. 

^  Louisville  Manuf.  Co.  v.  Welch,  10  *  Ogden    v.    Aspinall,    7    Dow.    & 

Howard  (U.  S.)  461.  Ryland,  637. 


148  LIABILITY    OF    SUKETY    GENEK^VLLY. 

ill  the  name  of  the  raih'oad  company,  wliich  borrowed  them  by 
its  president,  and  guarantied  by  certain  parties.  Held,  the 
guarantors  were  estopped  to  deny  that  the  president  of  the  com- 
pany had  authority  to  sign  the  contract.  By  guarantying  the 
contract,  they  had  in  substance  asserted  its  validity,  and  to  per- 
mit them  to  deny  it  would  be  to  allow  them  to  take  advantage  of 
their  own  wrong.'  The  teller  of  a  bank  had  authority  to  issue 
due  bills  for  the  bank,  for  a  special  purpose,  and  issued  such 
bills,  not  for  such  purpose,  but  to  raise  money  for  himself.  Held, 
that  neither  he  nor  his  surety  could  set  up  a  want  of  power  in 
the  bank  to  issue  them.  The  teller  and  his  sureties  were  "  not  as 
parties  to  the  instrument  entitled  to  contest  them,  although  they 
were  issued  for  the  bank  in  the  name  of  the  teller.  As  well 
might  the  teller  contend  that  as  he  committed  a  fraud,  the  bank 
was  not  bound  by  his  act.  This  he  could  not  be  heard  to  do."  ^  A 
party  was,  by  resolution  of  a  city  council,  appointed  the  city's 
agent  to  negotiate  certain  bonds  of  the  city  on  specified  terms. 
The  agent  accepted  the  trust  and  gave  bond  with  sureties  for  the 
faithful  performance  of  his  duties.  He  afterwards  borrowed 
$5,900  for  thirty  days,  for  which  he  gave  the  city's  note,  and 
put  up  as  collateral  thereto,  $21,000  of  city  bonds.  This  money 
he  did  not  pay  over.  The  city  paid  the  note  for  $5,000,  and  took 
up  the  bonds,  and  sued  the  surety  of  the  agent  for  the  $5,000. 
Held,  he  was  liable,  and  it  made  no  difference,  under  the  circum- 
stances, whether  the  bonds  were  legally  or  illegally  issued  by 
the  cit}',  nor  whether  or  not  it  was  bound  by  the  note,  signed  by 
the  agent.  The  city  adopted  the  act  of  the  agent,  and  paid  the 
note  to  save  its  credit,  and  he  and  his  sureties  were  liable  for  the 
money  received  by  him.^  But  where  the  seller  and  purchaser  of 
a  np.tional  bank  had  both  been  guilty  of  acts  in  the  purchase  and 
sale  which  were  prohibited  by  the  banking  act,  and  impaired 
the  value  of  the  bank,  it  was  held  that  the  surety  of  the  pur- 
chaser was  not  liable,  and  this,  although  the  purchaser  did  not 
seek  to  rescind  the  contract.  Both  the  creditor  and  principal  had 
been  guilty  of  an  act  prohibited  by  law,  which  was  injurious 
to  the  surety,  and  the  equity  of  the  surety  to  a  discharge,  did 
not  depend  upon  the  fact  that  the  principal  should  desire  to 
rescind  the  contract.* 

'  Simons  v.  Steele,  36  NewHamp.  73.  ^  City  of  Indianfipolis  v.   Ske:n,  17 

2  Wayne  t:   Com.   Natl.   Bank,  52      Ind.  628. 
Pa.  St.  343.  per  Thompson,  J.  ■'Denisoa  v.  Gibson,  24  Mich.  187. 


SURETY    NOT    LIABLE   FOK    SPECIFIC    PEEFOEMANCE.  149 

§  105.  "When  surety  not  liable  for  specific  performance — 
Surety  not  charged  to  exonerate  estate  of  principal — Other  cases. 
— A  second  tenant  in  tail  joined  in  a  mortgage  and  bond  with  the 
first  tenant  in  tail,  who  received  the  money  lent  thereon.  The  first 
tenant  in  tail  died,  and  it  was  held  that  his  creditors  could  not, 
bj  bill  in  equity,  have  the  money  secured  by  the  mortgage  made 
out  of  the  mortgaged  premises,  so  as  to  exonerate  the  personal 
estate  of  the  first  tenant  in  tail.*  A  held  two  mort^aijes  on  the 
same  property,  each  of  them  to  secure  a  separate  note.  He  sold 
the  second  mortgage,  and  the  note  secured  by  it,  to  B,  and  guar- 
antied the  j)ayment  of  the  note;  and  transferred  the  other  note 
and  mortgage  to  C,  as  collateral  security.  Held,  the  guaranty 
of  the  note  which  A  sold  to  B,  did  not  give  such  note,  and  the 
mortgage  securing  it,  a  preference  over  the  other.  The  only  ef- 
fect of  the  guaranty  was  to  render  A  personally  liable.^  A  owed 
B  two  notes,  each  for  1,000Z,  on  one  of  which  C  was  surety.  A 
had  a  security  up  with  B  for  both  debts,  and  became  bankrupt. 
B  proved  both  claims  against  his  estate,  and  received  a  dividend, 
and  also  received  a  certain  sum  from  the  security.  Held,  C  was 
only  liable  for  one-half  the  sum  proved  by  B  against  A's  estate, 
after  deducting  therefrom  one-half  of  both  sums  received  by  B.^ 
A  purchased  land  from  C,  and  gave  his  note  with  B  as  surety 
for  the  purchase  money,  0  also  retaining  a  lien  on  the  land  to 
secure  the  purchase  money.  A  became  insolvent,  and  the  land 
was  sold  under  execution,  and  purchased  by  D.  Afterwards,  C 
obtained  judgment  on  the  note,  against  A  and  B,  and  levied  his 
execution  on  the  land.  Held,  D  could  not  compel  C  to  exhaust 
the  property  of  B  before  selling  the  land.  If  B  had  paid  the 
debt,  he  would  immediately  have  been  subrogated  to  C's  lien,  and 
D  would  have  been  in  no  better  position.*  A  party  gave  bond 
with  surety,  to  convey  two  hundred  acres  of  land,  situated  within 
a  certain  district.  Upon  default  of  the  principal,  it  was  held  that 
the  surety  could  not  be  compelled  to  specifically  perform  the  con- 
tract by  conveying  land  of  his  own,  although  he  owned  more  than 
the  required  amount  and  kind  within  the  prescribed  district.  The 
surety  covenanted  that  the  principal,  not  himself,  would  convey. 
He  could  only  be  held  liable  in  damages,  and  not  for  a  specific 

'  Robinson  v.  Gee,  1  Vesey  Sr.  251.  ^  Coates  v.  Coates,  33  Beavan,  249. 

^Gaiisen    v.   Tomlinson,    8    E.   C.  ■*  Cole  County «;.  Angney,  12  Mo.l32. 

Green,  (N.  J.)  405. . 


150  LIABILITY    OF    SUKKTY    GEXEllALLY. 

j)erforniance.'  Three  parties  pnrcliased  jointly,  separate  lots  of 
groiind,  and  each  gave  his  notes  for  one-third  of  the  amount.  The 
act  of  sale  declared  that  each  had  a  one-third  interest  in  the  prop- 
erty, and  provided  "that  to  secure  the  payment  of  the  aforesaid 
notes,  the  purchasers  hereby  mortgaoe  the  herein  described  projD- 
erty."  Two  of  the  purchasers  paid  their  notes,  and  it  was  held 
that  their  land  could  not  be  sold  to  pay  the  note  of  the  third. 
The  court  said  it  was  the  same  as  if  each  had  given  a  separate 
mortgage  on  his  portion  of  the  land,  and  when  any  one  paid,  it 
operated  the  release  of  his  land.'  But  where  two  joint  owners  of 
a  piece  of  land  jointly  mortgaged  it  to  secure  the  several  notes  of 
each  of  them,  it  was  held  that  the  interest  of  both  might  be  sold 
to  pay  the  note  of  one." 

§106.  What  payment  by  person  indemnified  will  charge  surety 
— "When  surety  liable  for  costs — Other  cases. — When  a  party  in- 
demnified by  bond  with  surety,  against  the  payment  of  money,  is 
obliged  to  pay  it,  and  does  pay  it  by  giving  his  negotiable  note, 
which  is  accepted  as  payment,  he  may  sue  the  surety,  and  recover 
the  same  as  if  he  had  paid  in  money.''  The  guarantor  of  a  note 
is  not  liable  for  protest  fees,  because  protest  is  not  necessary  in 
order  to  fix  his  liability.^  ISTor  is  the  guarantor  of  a  note,  who  is 
absolutely  liable,  without  any  suit  against  the  maker,  chargeable 
with  the  costs  of  such  a  suit.''  But  wliere  one  partner  by  bond 
with  surety,  agreed  to  pay  all  the  firm  debts,  and  failed  to  do  so, 
and  the  retiring  partner  was  arrested  in  another  state  for  one  of 
the  debts,  and  paid  the  debt  and  costs,  it  was  held,  that  the  surety 
was  liable  for  such  costs.'  A  guaranty  was  as  follows:  "  Gentle- 
men, you  will  please  to  credit  Mr.  A  to  the  extent  of  30?, 
monthly,  from  time  to  time,  and  in  default  of  his  not  jjaying,  I 
will  be  accountable  for  the  above  amount."  Held,  the  guaranty 
was  not  limited  to  30Z  in  all,  but  authorized  an  advance  of  dOl 
every  month,  even  though  the  aggregate  indebtedness  might 
amount  to  much  more  than  oOl.^     Where  a  lease  provided  for 

'  Johnson  r.  Hobson,  1  Littell  (Ky.)  '•Woolley  r.    VanVolkenburgh,    16 

314.  Kansas,  20. 

^  Erwin  v.  Greene,  5  Robinson  (La.)  ^  Wcodstock  Bank  v.  Downer,  27  Vt. 

70.  539. 

^  Hunt  V.  McConncll,  1  T.  B.  Monroe  '  Wright  v.  Sewall,  9  Robinson.  (La.) 

(Ky.)  219.  128. 

^ Lee  17.   Clark,    1  Hill  (N.  Y.)  56;  ^Tennanfc    v.   Orr,    15    Irish    Com. 

Gage  V.  Lewis,  68  III.  604.  Law  R.  397. 


SURETY    SOT    LIABLE    FOR    MORE    THAN    PRINCIPAL.  151 

tlie  payment  of  rent  in  monthly  installments,  and  a  party  guar- 
antied the  prompt  performance  of  all  the  covenants  thereof  by 
the  lessee,  the  guarantor  is  liable,  and  may  be  sued  for  the  rent 
each  month  as  it  becomes  due.'  Where  one  who  has  contracted 
with  A  to  indemnify  and  keep  him  harmless  as  to  "liabilities" 
incurred  by  him  as  indorser  for  B,  permits  a  judgment  to  be 
taken  against  A  on  such  indorsement,  it  is  not  necessary  that  the 
judgment  should  have  been  collected  to  enable  A  to  maintain  an 
action  for  breach  of  the  contract.^  A  note  was  guarantied  to  be 
"  good  and  collectible  two  years."  Held,  the  guaranty  covered 
the  period  of  two  years  after  the  maturity  of  the  note,  as  the  note 
was  not  collectible  till  it  was  due.'  Where  a  bond  of  $1,000  is 
required  of  an  accused  person,  and  he  gives  such  a  bond,  in  which 
each  of  the  two  sureties  becomes  bound  for  $500,  the  bond  is 
valid.* 

§  107.  Surety  not  liable  for  greater  sum  than  principal — Other 
cases. — A  surety  who  signs  in  the  absence,  and  without  the 
knowledge  of  the  principal,  is  bound.*  A  guaranty  may  have  a 
retrospective  operation,  where  it  appears  from  the  instrument 
that  such  was  the  intention  of  the  parties;  and  an  instrument 
may  be  ante-dated,  so  as  to  embrace  a  particular  transaction;  and 
the  date  of  the  instrument  is  evidence  of  the  time  when  the  par- 
ties intended  it  to  take  efiect."  Suit  was  commenced  against  the 
principal  and  one  surety,  on  a  ]3ay master's  official  bond,  and  judg- 
ment for  $10,000  recovered.  Afterwards  suit  was  brought 
against  another  surety  on  the  bond,  and  a  greater  recovery  than 
$10,000  claimed.  Held,  that  as  the  liability  of  the  principal  was 
fixed  at  $10,000  by  the  first  judgment,  the  surety  in  the  last  suit 
could  not  be  held  liable  for  more.  Otherwise  the  surety  would 
be  held  to  a  greater  liability  than  the  principal.'  If  the  consider- 
ation upon  which  a  surety  signs  fails,  he  is  discharged,  and  may 
come  into  equity  and  have  his  obligation  canceled.*  A  common 
money  bond,  payable  on  demand,  given  by  a  principal  and  surety, 

1  Binz  V.  Tyler,  79  III.  248.  *  Moore  v.  The  State,  23  Ark.  480. 

2  Smith  V.  Chicago  &  N.  W.  R.  E.  ^ Hughes  v.  Littlefielcl,  18  Me.  400. 
Co.,  IS  Wis.  17.  ej^ljrams  v.  Pomeroy,  13  111.  133. 

3  Marsh  v.  Day,  IS  Pick.  321.  As  to  '  United  States  v.  AUsbury,  4  Wal- 
liability  of  the  surely  on   a  bond  "to  lace,  186. 

be  binding  only  one  year  from  date,  ^  Cooper  v.  Joel,  1  De  Gex,  Fish.  & 

see  Davis  v.  Copeland,  67  New  York,      Jo.  240. 

127. 


152  LIABILITY    OF    SURETY    GENERALLY. 

to  a  person  then  tlie  creditor  of  tlie  principal,  is  presumed  to  he 
given  for  tlie  existing  debt,  and  not  to  cover  future  advances  hj 
the  creditor  to  the  principal.'  "When  a  surety,  who  had  an  oppor- 
tuiiitj'  to  read  it,  but  did  not,  signed  a  bond  for  the  payment  of 
a  debt,  believing  it,  from  the  representations  of  the  principal,  to 
be  a  bond  for  the  deliveiy  of  attached  property,  he  is  guilty  of 
such  gross  negligence  as  will  prevent  him  from  having  relief  in 
equity  against  the  bond.*  A  guarantor  that  a  party  shall  not  be- 
come bankrupt,  is  not  liable,  unless  a  commission  of  bankruptcy 
is  sued  out  against  such  party. ^  The  same  causes  which  will  dis- 
chai'ge  a  surety  on  a  promissory  note,  will  ordinarily  discliarge  an 
indorser  of  the  same.*  If  a  note  is  void  for  usury,  a  guaranty 
thereof,  which  has  no  other  consideration  than  the  note,  is  also 
void  for  the  usury.^ 

§  108.  Sureties  on  assignee's  bond  not  liable  to  those  who 
defeat  the  assignment — Principal  cannot  allege  for  error  that 
surety  is  discharged — Other  cases. — The  sureties  on  the  bond  of 
an  assignee,  given  pursuant  to  a  statute  with  reference  to  volun- 
tary assignments  for  the  benefit  of  creditors,  are  not  liable  for  the 
failure  of  their  principal  to  account  for  the  assets  in  his  hands,  as 
required  by  a  judgment  in  favor  of  creditors  declaring  the  assign- 
ment void  as  to  them,  and  directing  the  assignee  to  pay  over  the 
assets  and  avails  thereof  in  his  hands,  to  be  applied  in  satisfaction 
of  their  claims.  The  bond  was  not  intended  for  the  benefit  of 
persons  who  attacked  and  defeated  the  assignment,  and  thereby 
defeated  the  trust,  but  was  for  the  good  behavior  of  the  assignee 
as  trustee  under  the  assignment.^  When  the  surety  is  discharged 
on  the  trial  of  a  case  against  principal  and  surety,  in  the  court 
below,  the  principal  cannot  allege  for  error  in  the  court  above 
such  discharge  of  the  surety.  "The  release  of  the  surety,  wheth- 
er erroneous  or  not,  could  in  no  wise  prejudice  the  defendant,  or 
afiect  his  liability  as  principal,  and  he  will  not,  therefore,  be  heard 
to  complain  of  it."  ^  The  surety  on  a  note  given  for  the  price 
of  a  horse,  and  which  is  void  because  it  is  payable  in  confederate 
money,  is  not  liable  on  the  note, because  it  is  void;  nor  is  he  lia- 
ble for  tlie  price  of  the  horse,  because  his  only  liability  existed  by 

'  Walker  v.  Hardman,  4  Clark  &  ^  Heidenheimer  v.  Mayer,  10  Jones 

Finnelly,  258.  &  Spen.  (N.  Y.)  506. 
^Glenn  v.  Statler,  42  Iowa,  107.  ^People  v.  Chalmers,  60  New  York, 

^Bulkeley  v.  Lord,  2  Starkie,  406.  154. 
*  Smith  V.  Rice,  27  Mo.  505.  '  Fewlass  v.  Abbott,  28  Mich.  270. 


IJsTEEMARKIAGE    OF    CKEDITOK    AND    PEINCIPAl,.  153 

virtue  of  tlie  note/  A  surety  is  bound  to  ascertain  liis  principal, 
and  wliere,  by  mistake,  lie  signs  a  bond  for  the  lessee  of  a  tele- 
graph company  instead  of  for  the  company,  to  release  property 
from  attachment,  he  will  be  bound.^  If  it  is  agreed  that  a  cer- 
tain party  shall  be  surety  on  a  bond  to  a  sheriff,  and  a  blank  bond 
is  taken  to  him  and  he  signs  it,  and  dies,  and  afterwards  the  bond 
is  filled  up  according  to  the  agreement,  and  delivered  to  the  sher- 
iff, the  estate  of  the  surety  is  liable  on  the  bond.  As  the  surety 
had  been  previously  agreed  upon,  the  contract  was  complete  as 
soon  as  the  suretj^  signed.^  The  sureties  on  the  bond  of  an  as- 
signee for  the  benefit  of  creditors,  which  provides  that  the  assignee 
shall  "  faithfully  execute  the  trusts  confided  to  him,"  are  conclu- 
ded by  the  final  decree  of  a  court  upon  the  account  of  the  as- 
signee, by  which  he  is  directed  to  pay  the  claim  of  a  specific  cred- 
itor.* It  has  been  held  that  the  fact  that  a  voluntary  bond  is  not 
stamped,  is  no  defense  to  the  sureties  therein.  They  or  their  prin- 
cipal should  have  stamped  it.^ 

§  109.  "When  surety  released  if  creditor  and  principal  inter- 
marry.— Surety  not  liable  to  party  who  pays  debt  at  principal's 
request — Other  cases. — A  party  who,  at  the  request  of  the  princi- 
pal alone,  pays  the  debt  for  which  a  principal  and  surety  are 
bound,  cannot  usually  collect  the  amount  so  paid  from  the 
surety.  Thus,  where  an  executor,  supposing  the  estate  of  his  tes- 
tator to  be  solvent,  paid  in  full  a  debt  due  by  the  testator  on 
which  there  was  a  surety,  it  was  held  that  the  executor  could  not, 
upon  the  estate  proving  insolvent,  recover  any  portion  of  the  sum 
so  paid  from  the  surety.^  A  as  principal,  with  others  as  his 
sureties,  executed  a  note  to  B,  a  feme  sole,  and  afterwards  A  and  B 
intermarried;  under  the  provisions  of  an  ante-nuptial  contract 
between  them,  the  note  did  not  pass  to  A  upon  the  marriage,  but 
remained  the  separate  j^roperty  of  B.  Held,  that  upon  the  mar- 
riage the  wife  lost  her  remedy  by  action  against  the  husband,  and 
the  sureties  were  thereby  discharged.'  A  creditor  authorized 
his  agent,  B,  to  administer  on.  the  estates  of  any  of  his  debtors 

1  Shepard  v.  Taylor,  35  Texas,  774.  *  McGovem  v.  Hoesback,  53  Pa.  St. 

^  Doane  v.  Telegraph  Co.,  11  La.  An.  176. 

504.  sPainer.Drmy,  19Pick.400.    Hold- 

^  Wells  r.  Moore,  8  Robinson,  (La.)  ing  the  same  principle  with  reference 

156.  to  the  surety  on  a  distiller's  bond,  see 

*  Little   V.  The  Commonwealth,   48  Elmendorph  i'.  Tappen,  5  Johns,  176. 

Pa.  St.  337.  ■>  Govan  v.  Moore.  30  Ark.  687. 


154:  LIABILITr    OF    SURETY    GEXEEALLY. 

who  niii^ht  die  intestate.  13  administered  on  one  of  those  estates' 
and  gave  bond  with  C  as  surety  for  the  faithful  performance  of  liis 
duty  as  administrator.  B  used  the  funds  of  the  estate  and  became 
bankrupt.  Ilekl,  C  was  not  liable  to  the  creditor  for  B's  default. 
11  was  the  agent  of  the  creditor,  and  represented  him  in  that  re- 
gard. C  was  therefore  the  surety  of  the  creditor,  and  the  creditor 
had  no  cause  of  action  against  his  own  surety.' 

§  110.  When  agreement  to  pay  in  good  notes  not  guaranty 
that  notes  in  which  payment  is  made  are  good — Other  cases. — 
"Where,  in  an  agreement  for  the  sale  of  goods,  it  was  stipulated 
that  a  part  of  the  purchase  money  should  be  paid  in  "good  obli- 
gations," and  certain  notes  were  tendered  to  the  seller,  and  re- 
ceived and  receijjted  for  by  him  "  on  payment  of  goods,"  there  is 
no  guaranty  of  the  solvency  of  the  makers  of  such  notes.  The 
insertion  of  the  word  ''good  ".  implied  no  guaranty,  but  gave  the 
seller  a  right  to  refuse  notes  which  did  not  answer  that  descrip- 
tion; and  having  received  the  notes  as  good,  and  receipted,  for 
them,  he  has  not,  in  the  absence  of  fraud,  any  claim  npon  the 
purchaser."  '  A  guaranty  was  as  follows:  "  This  may  certify  that 
we,  being  acquainted  with  Frank  Stevens,  and  reposing  great  con- 
fidence in  his  honesty,  and  the  goods  you  may  see  fit  to  entrust 
him  with,  we  will  hold  ourselves  good  for,  provided  he  should 
sell  them  and  abscond  with  the  money,  or  squander  them  away; 
and  this  shall  be  your  note  against  ns:"  Held,  this  was  a  mere 
guaranty  of  the  honesty  of  Stevens.  The  guarantors  were  not 
liable,  unless  Stevens  sold  the  goods  and  absconded,  or  squandered 
them;  and  a  failure  to  pay  for  the  goods  was  not  evidence  that 
they  had  been  squandered.*      A  guaranty  that  the  owner  of  stock 

'  Moodie  v.  Penman,  3  Dessaussure,  not  to  be  produced  till  the  death  of  the 

Eq.   ( So.   Car. )    482.      As    to  when  parties,   is  vaUd  if  produced  before, 

guaranty  covers  past  advances  as  well  see,  Washburn  r.  Van  Norden,  28  La. 

as  future  ones,  see  Morrell  r.  Cowan,  An.  768.     Holding',  that  where  a  surety 

Law  Hep.  6  Eq.  Div.  166.    Holding',  is  paid  by  the  principal,  the  amount  of 

that  a  suretj^  ibr  a  suit  to  be  com-  a  debt  for  which  he  is  hable,  and  there- 

menced  at  the  next  term  of  court,  is  upon  agrees  to  pay  the  creditor,  he 

not  liable  for  a  suit  commenced  at  the  becomes  the  principal,  and  the  princi- 

thh-d  term,  see  Hibbs  v.  Rue,   4  Pa.  pal  becomes  the  surety,  as   between 

St.  348.    To  the  effect  that  a  surety  them,  see  CoggeshaU  v.  Ruggles,  62 

cannot  prevent  a  judgment  against  the  111.  401. 

principal  from  being  amended,   see,  '^  Corbet  r.  Evans,  25  Pa.  St.  310. 

Pryor  1-.  Leonard,  67  Ga.  136.     As  to  ^  ]^IcDougal  r.  Calef,  34  K ew  Hamp. 

when  a  guaranty,  which  by  its  terms  is  534. 


MISCELLANEOUS   CASES.  155 

in  a  corporation  sliall  receive  dividends  thereon  of  a  specified 
amount,  for  a  certain  number  of  j-ears,  by  paying  to  the  guaran- 
tor all  he  receives  above  that  amount,  is  valid.  It  is  not  a  wager, 
but  "  not  only  in  Avords,  but  also  in  its  plain  design,  a  guaranty 
to  the  plaintiffs  of  a  certain  yearly  profit  on  railroad  stock  owned 
by  them."  '  On  a  transfer  of  certain  shares  of  railroad  stock,  the 
assignor  guarantied  "that  said  stock  shall  yield  annually  six  per 
cent,  dividends  for  the  space  of  three  years:  "  Held,  this  was  a 
guaranty  that  the  stock  was  equal  in  value  to  stock  yielding  annual 
dividends  of  six  per  cent.,  and  not  merely  a  guaranty  that  the 
assignee  should  receive  six  per  cent,  annually  for  three  years  on 
tlie  par  value  of  the  stock.  The  measure  of  damages  was  the 
difference  between  the  actual  value  of  the  stock  assigned,  and 
stock  which  would  have  yielded  dividends  of  six  per  cent,  for  the 
three  years.^  A  guaranty  on  a  bond  was  as  follows:  "  For  value 
received,  I  guaranty  the  punctual  payment  of  the  interest  on 
the  within  bond,  and  will  pay  the  interest  on  demand  in  default 
of  its  payment  by"  *  [the  principal].  The  bond  was  due  in 
six  and  a  half  years,  and  the  interest  was  payable  semi-annually: 
Held,  the  guaranty  only  extended  to  the  payment  of  interest  fall- 
ing due  before  the  time  of  payment  of  the  principal  sum.  If  it 
was  otherwise,  and  the  bond  was  never  paid,  the  guarantor  would 
be  liable  for  interest  forever.'  If  the  principal  borrow  money  to 
pay  a  note,  the  law  will  not  imply  an  authority  in  him  from  those 
who  signed  the  note  as  sureties  only,  to  borrow  the  money  on  the 
joint  credit  of  the  princij)al  and  sureties,  nor  a  promise  from  the 
sureties  to  the  lender  to  repay  the  money  so  borrowed.^ 

§  111.  Surety  for  return  of  slave  liable,  if  death  of  slave 
caused  by  principal — Other  cases. — A  surety,  who  executes 
a  bond  for  the  hire  of  a  slave,  which  contains  a  covenant 
for  the  return  of  the  slave  at  the  end  of  a  year,  is  not  discharged 
from  his  obligation  to  return  the  slave,  by  the  fact  that  before 
the  end  of  the  year  such  slave  dies  in  consequence  of  the  inhu- 
man treatment  which  he  receives  at  the  hands  of  the  principal. 
The  death  of  the  slave  was  not  the  act  of  God  or  the  owner. 
The  principal  and  surety  "  are  joint  covenantors,  equally  bound 

'  Elliot  V.   Hayes,  8  Gray,  164,  per  ^  Hamilton  v.   Van    Rensselaer,  43 

Metcalf,  J.  New  York,  244;    Melick    v.  Knox,  44 

^Strathers    v.     Clark,    30    Pa.   St.  New  York,  676. 

210.  "  Rolfe  V.  Lamb,  16  Vt.  514. 


15G  LIABILITY    OF    SURETY    GENERALLY. 

for  the  performance  of  the  covenant,  and  neither  can  exonerate 
himself  from  liabilit}^,  on  the  ground  that  the  wrongful  act  of 
the  other  has  rendered  a  performance  by  him  impossible."  '  A 
party  wrote  a  letter  introducing  another,  stating  that  he  wanted 
to  purchase  a  certain  amount  of  goods,  and  concluding  "  I  con- 
sider him  perfectly  good,  and  if  required,  will  indorse  for  him 
to  that  amount."  Held,  he  was  not  liable  for  goods  sold  on  the 
strength  of  this  letter,  unless  he  had  been  requested  to  indorse, 
and  had  refused.  The  guaranty  was  conditional,  to  be  created 
by  indorsement,  if  required,  and  the  protection  of  the  party 
writing  the  letter  may  have  depended  upon  the  form  of  the  se- 
curity." A  bond  provided  that  a  secretary  of  state  should  return 
certain  fees,  if  it  should  be  decided  by  the  legislature  or  supreme 
court,  that  they  were  not  chargeable  to  a  fund  commissioner. 
Held,  tlie  sureties  were  not  liable,  unless  the  legislature  or 
supreme  court  decided  as  provided  in  the  bond.  A  decision  by 
one  house  of  the  legislature  was  not  sufficient,  and  neither  the 
sureties  nor  their  principal  were  bound  to  procure  the  decision.^ 
A  covenant  to  indemnify  A  against  all  damages  and  costs  which 
he  may  incur  in  consequence  of  indorsing  an}''  notes  of  B,  past 
or  prospective,  relates  only  to  indorsements  made  by  A,  for  the 
accommodation  and  at  the  request  of  B,  and  does  not  extend  to 
indorsements  by  A  of  notes  given  him  by  B,  for  debts  of  B,  due 
to  A.*  A  statute  concerning  paupers,  provided  that  a  settle- 
ment might  be  gained  "by  any  person,  who  shall  bona  fide  take 
a  lease  of  any  real  estate,  of  the  yearly  value  of  ten  dollars,  and 
shall  dwell  upon  the  same  one  whole  year,  and  pay  the  said 
rent."  A  took  a  lease  of  ground  for  a  year  at  a  rent  of  $1  a 
month,  and  paid  $1.50  rent  himself,  and  his  surety  B  paid  the 
balance.  Held,  this  was  sufficient  to  entitle  A  to  a  settlement. 
It  was  the  same  as  if  A  bad  borrowed  the  money  from  B,  and 
paid  the  rent.®  Upon  a  bond  conditioned  that  one  J  should  pay 
to  plaintiffs  monthly,  "  and  every  montb  during  the  time  for 
which  he  should  act  as  their  agent,'  all  moneys  which  he  then 
had  received  or  which  he  should  receive  for  premiums,  etc.,  and 
should  repay  to  the  applicants  all  moneys  which  he^had  then  re- 

^  Carney  v.   Waldcn,    16  B.   Mon.  "'Yi^Vl  v.   Rawliugs,  1  Gilm.  (111.) 

{Ky.)383,  per  Simpson,  J.  581. 

^  Stockbridge   v.    Schoonmaker,  45  *Trask  i'.  Mills,  7  Cush.  552. 

Bai-b.  (N.  Y.)  100.  » Butler  r.  Sugarloaf,  6  Pa.  St.  262. 


MISCELLAKEOUS   CASES.  157 

ceived  or  sliould  receive  for  insurances  not  accepted  bj  the  plain- 
tiffs, and  sliould  in  all  things  well  and  faithfully  conduct  himself 
as  their  agent,"  it  was  held  the  sureties  were  only  liable  for 
moneys  received  after  the  bond  was  executed.* 

§  lis.  Surety  for  balance  -which  may  remain  due  after  sale  of 
property  not  liable  till  completed  sale  made — Other  cases. — An 
executor's  bond,  describing  the  testator  as  James  L.  Findiey,  can- 
not by  jDarol  evidence  be  made  applicable  to  the  estate  of  Joseph 
L.  Findiey,  although  it  was  the  intention  to  give  the  bond  in  the 
estate  of  the  latter,  and  the  mistake  was  a  clerical  error.*  In 
consideration  that  the  plaintiff  would  advance  1,200Z  to  a  third 
person,  upon  mortgage  of  certain  leasehold  premises,  the  de- 
fendant promised  that  if,  after  any  "  sale"  of  said  premises,  duly 
made,  the  premises  did  not  pay  the  debt,  the  defendant  would 
immediately  make  good  the  difference.  The  premises  were  put 
up  for  sale,  and  knocked  down  to  "W  for  650?,  who  paid  a  de- 
posit of  lOOl,  and  signed  the  usual  contract,  but  afterwards  re- 
fused to  complete  the  purchase,  and  the  plaintiff  sued  him  on  the 
contract,  which  suit  was  pending.  The  plaintiff  then  sued  the 
defendant  on  the  guaranty.  Held,  the  suit  was  premature,  and 
could  not  be  sustained.  The  word  "  sale"  meant  a  completed 
sale.  Otherwise  there  was  no  means  of  ascertaininij  the  dama^e.^ 
A  guaranty  on  the  back  of  a  bond  was  as  follows:  "I  *  do 
hereby  guaranty  and  bind  myself  and  heirs  to  "  for  the  pay- 
ment of  the  amount  of  the  within  bond."  The  condition  of  the 
bond  was  that  the  obligors  should  at  a  certain  time  pay  a  sum  of 
money,  "  on  receiv'ing  from  the  obligee  a  title"  to  certain  land. 
Held,  the  covenants  were  mutual,  and  dependent,  and  the  plaintiff" 
could  not  recover  without  showing  a  tender  of  a  deed  for  the  land 
to  the  obligor.'*  A  covenanted  with  B  that  C  should  sell  and  ac- 
count for  all  merchandise  which  B  might  put  into  his  hands.     B 

'  Canada  "West,  etc.  Ins.  Co.  v.  Mer-  lectible,  see  Sylvester  v.    Downer,  18 

ritt,  20  Up.  Can.  Q.  B.  R.  444.     As  to  Vt.  32. 

what  is  guaranty  and  not  an  original  ^McGovney  v.  The  State,  20  Ohio, 

undertaking,  see  Kellogg  v.  Stockton,  93.     The  guaranty  must  be   strictly 

29  Pa.  St.  4G0.     As  to  when  sureties  of  complied  with,  or  the  guarantor  is  not 

life  insurance  agent  are  not  liable  for  liable,   Bigelow  v.  Benton,  14  Barb, 

renewal   premiums  received  by  him,  (N.  Y.)  123. 

see  Crapo  ik  Brown,  40  Iowa  487.    As  ^Moor  v.  Roberts,  3  J.  Scott  (N.  S.) 

to  what  must  be  stated  in  declaration  830. 

against  guarantor  that  a  note  is  col-  *  Gardner  v.  King,  2  Ired.  Law  (Nor. 

Car.J  297. 


15S  LIABILITY    OF    SURETY    GENERALLY. 

settled  witli  C,  and  a  balance  was  found  due  from  C,  for  which  B 
took  his  note,  dne  one  day  after  date.  Held,  if  the  note  was  not 
paid,  A  was  liable  on  his  covenants  for  taking  the  note  was 
nothing  more  than  was  reasonably  within  the  contemplation  of 
the  parties."  If  the  payee  of  a  note  guaranties  its  collection,  and 
transfers  it,  and  afterwards  takes  it  up,  and  then  transfers  it  to 
another  person,  who  agrees  to  take  it  at  his  own  risk,  but  the 
guaranty  is  not  erased,  the  paj^ee  is  not  liable  to  the  holder  on 
the  guaranty.  "When  the  payee  took  u])  the  note  the  guaranty 
hecame  Jkinct us  ojicio,  and  there  was  no  contract  of  guaranty  be- 
tween the  paj-ee  and  the  holder.^ 

§  113.  When  guaranty  not  revoked  by  death  of  guarantor — 
"When  surety  cannot  relieve  himself  from  future  liability  by  no- 
tice.— When  the  engagement  of  a  surety  is  a  contract,  and  not  a 
bare  authority,  it  is  not  usually  revoked  by  his  death,  and  his 
estate  remains  liable,  the  same  as  he  would  have  been  if  lie  had 
lived.^  Thus,  where  a  party  became  surety  for  a  deputy  sheriff, 
liis  estate  was  held  liable  for  a  breach  committed  three  years  after 
his  death.  The  court  said:  "The  efficacy  of  contracts  does  not 
cease  upon  the  death  of  one  of  the  contracting  parties.  *  Whether 
a  man  undertakes  for  himself  or  others,  in  regard  to  future  trans- 
actions, the  contingency  that  death  may  remove  him  before  the 
obligation  can  be  fulfilled,  must  be  in  the  contemplation  of  all 
parties,  but  it  remains  unaffected  by  that  event."  *  A  written 
continuing  guarant}^  was  given  by  A  and  B,  which,  by  its  terms, 
was  to  continue  in  force  till  revoked  by  written  notice.  A  died, 
leaving  a  solvent  estate,  and  four  years  after  his  death,  no  notice 
having  been  given,  a  liability  was  created,  covered  by  the  guar- 
anty, which  B  had  to  pay,  and  he  sued  the  estate  of  A  for  contri- 
bution. Held,  he  was  entitled  to  recover.  The  court  said: 
"  What  obstructs  one  from  indemnifying  against  the  conse- 
quences of  an  event  which  may  not  happen  for  more  than  four 
years  after  his  death,  more  than  giving  his'  promissory  note, 
which  may  not  reach  maturity  for  more  than  four  years  from  his 
death?    It  is  asked  how  long  such  a  guaranty  shall  continue  in 

1  Bush  V.  Crifcchfield,  5  Ohio,  109.  39  Pa.  St. ;  Royal  Ins.  Co.  v.  Davies, 

^  Gallagher  v.  White,  31  Barb.  (N.  40  Iowa,  4G9. 

Y.)92.  "Green  v.  Young,  8  Greenl.  (Me.) 

*Hightowcr  v.   Moore,  46  Ala.  387;  14,  per  Weston,  J. 
White's  Exrs.  v.  The  Commonwealth, 


REVOCATION    OF    GUARANTY    BY    DEATH    OF    GUARANTOR.        159 

force,  and  the  answer  is,  until  it  be  ended  according  to  its  term?.'" 
When  a  guaranty  was  as  follows:  "  I  request  you  will  give  credit 
in  the  usual  way  of  your  business,  to  L,  and  in  consideration  of 
your  doing  so,  I  hereby  engage  to  guaranty  the  regular  pay- 
ment of  the  running  balance  of  his  account  with  you  till  I  give 
you  notice  to  the  contrary,  to  the  extent  of  100?  sterling,"  it  was 
held  that  the  estate  of  the  guarantor  was  liable  for  goods  supplied 
after  his  death."  A  party  who  has  entered  into  a  contract  as 
surety,  cannot  ordinarily,  by  notice,  relieve  himself  from  future 
liability  for  his  principal,  in  the  absence  of  a  stipulation  to  that 
effect;  thus,  a  party  on  taking  in  a  clerk,  took  from  him  a  bond 
with  surety,  for  his  good  behavior.  The  time  of  service  was  not 
fixed,  but  it  was  to  be  determinable  at  the  option  of  either  the 
clerk  or  the  employer.  The  surety  died,  and  his  executrix  gave 
notice  to  the  employer  that  she  should  no  longer  consider  herself 
liable  on  the  bond.  The  employer  read  the  notice  to  the  clerk, 
and  required  him  to  execute  a  new  bond  with  another  surety, 
which  was  done.  IIeld,the  estate  of  the  first  surety  was  liable 
for  defaults  of  the  clerk  occurring  after  the  notice  was  given. 
The  employer  did  not  agree  to  release  the  estate,  and  his  acts  upon 
receiving  the  notice,  did  not  operate  as  such  a  release.'  Upon  a 
bond  by  a  surety,  conditioned  for  a  collecting  clerk's  paying  over 
money  received  by  him  from  time  to  time,  and  at  all  times  during 
his  continuance  in  the  service,  it  has  been  held  that  the  surety  can- 
not discharge  himself  from  further  liability,  by  giving  notice  on  a 
particular  day,  that  from  thenceforward  he  will  not  remain  surety. 
The  court  said  if  he  desired  to  have  the  right  to  terminate  his  sure- 
tyship by  notice,  he  should  have  so  specified  in  his  contract." 
Where  a  guaranty  was  revocable,  it  was  held  it  could  not  be  re- 
voked so  as  to  prejudice  the  party  who  had  already  acted  upon  it,  nor 
prevent  him  from  renewing  obligations  which  he  had  taken  on  the 
faith  of  it.'  It  has  been  held  that  a  general  guaranty  continues 
in  force  till  it  is  shown  by  the  guarantor  to  have  been  rescinded." 

^Knotts   V.   Butler,    10  Richardson  ^  Qo^fion  v.  Calvert,  2  Simons,  253; 

Eq.    (So.    Car.)    143,    per    Wardlaw,  affirmed,  4  Russell,  581. 

C.  J.;    to    same    effect,   see    Fennell  *  Calvert  r.  Gordon,  3  Man.  &  Ryl. 

V.   McGuire,   21   Up.   Can.   C.  P.  R.  124. 

134.  *  Williams  v.   Reynolds,  11   La.   (6 

■^Bradbury  v.   Morgan,   1   Hurl.  &  Curry)  280. 

Colt.  249;  to  similar  effect,  see  Menard  ^Knight    v.    Fox,     Morris    (Iowa) 

V.  Scudder,  7  La.  An.  385.  305. 


ICO  LIABILITY    OF    SrKETY    GENERALLY. 

If  a  wife  morti^ages  lier  real  estate  for  tlie  debt  of  her  husband, 
the  land  remains  liable  after  her  death.* 

§  114.  "When  death  of  guarantor  revokes  guaranty — When 
surety  may  terminate  his  liability  by  notice. — One  who  guaran- 
ties tlie  performance  of  a  contract  by  another,  has  the  right  after 
the  default  of  his  principal,  which  would  justify  its  termination, 
to  require  that  the  contract  be  terminated  and  the  claim  against 
himself  as  surety  be  confined  to  the  damages  then  recoverable.' 
A  surety  upon  an  ordinary  lease  for  one  year  (with  provision  that 
if  there  was  a  holding  over,  it  should  run  for  another  year,  unless 
the  landlord  sooner  determined  it,  and  upon  which  there  had  been 
such  a  holding,  that  the  tenancy  w\as  one  from  year  to  year),  gave 
three  months  notice  in  writing  to  the  landlord,  that  at  the  expir- 
ation of  the  then  current  year,  he  would  no  longer  be  resjionsible 
for  rent,  and  it  was  held  that  at  the  expiration  of  that  year  he 
was  released  from  further  liability.'  It  has  been  held,  that  the 
death  of  a  person  who  has  given  a  letter  of  credit,  authorizing 
another  to  draw  on  him  to  a  certain  amount  for  a  limited  period, 
and  agreeing  to  accept  the  drafts  drawn,  and  pay  them  if  not  paid 
by  the  drawer  at  maturity,  will  operate  as  a  revocation  of  all  au- 
thority to  thereafter  draw  on  his  credit  so  as  to  bind  his  estate, 
though  the  person  to  whom  and  for  whose  security  the  letter  was 
given  has  no  notice  of  his  death,  and  the  period  for  which  the 
authority  was  given  has  not  expired.*  The  court  treated  it  as  a 
question  of  agency,  and  said  that  the  death  of  tlie  principal  re- 
voked the  authority  of  the  agent;  while  admitting,  that  if  there 
had  been  a  contract,  the  death  of  the  guarantor  would  not  have 
affected  it.  It  has  also  been  held,  that  a  guarant}'-  to  secure 
money  to  be  advanced  to  a  third  party  on  discount  to  a  certain 
extent  for  the  space  of  twelve  months,  may  be  revoked  within 
that  time.^  The  court  said  the  promise  by  itself  created  no  obli- 
gation unless  advances  were  made,  and  the  fact  that  twelve  months 
was  mentioned  in  the  guaranty,  limited  the  time  beyond  which 
it  should  not  extend,  instead  of  making  a  binding  contract  for 
that  time.  Both  these  cases  may  well  be  sustained,  by  the  fact 
that  the  writings  in  each  were  simply  offers  to  guaranty,  which 

'Miner  v.  Graham,  24  Pa.  St.  491.  *  Michigan  State  Bank  v.  Estate  of 

'  Hunt  V.  Roberts,  45  New  York,  691.  Leavenworth,  28  Vt.  209. 

'Estate  of  Desilver,  9  Phila.  (Pa.)  "^OfiforcU'.  Davies,  12  J.  Scott  (N.  S.) 

302;  to  similar  effect,  see,  Pleasanton's  748. 

appeal,  75  Pa.  St.  344. 


JOINT   SUIT   AGAINST    SURETY   AND    PRINCIPAL.  161 

were  only  binding  so  far  as  they  were  acted  on,  and  miglit  at  any 
time  be  revoked,  the  same  as  any  other  offer  before  it  is  accepted.' 
A  guaranty  was  determinable  by  six  months'  notice,  and  the  guar- 
antor died,  leaving  as  his  executor  the  debtor,  on  whose  behalf  the 
guaranty  was  given.  The  creditors,  knowing  these  facts,  and  also 
that  there  was  no  personal  estate  to  answer  the  guaranty,  contin- 
ued to  make  advances  to  the  debtor  for  two  or  three  years.  Held, 
the  creditors  could  not  recover  against  the  guarantor's  estate  for 
any  advances  made  after  his  death.  This  was  not  put  upon  the 
ground  that  the  guarantor's  death  terminated  the  guaranty,  for 
the  court  said  it  did  not  think  that  alone  would  terminate  it,  but 
upon  the  ground  that  when  the  creditor  knew  there  was  no  per- 
sonal estate,  it  would  be  presumed  that  the  advances  were  not 
made  on  the  guaranty,  and  that  it  would  be  grossly  inequitable 
to  allow  the  creditor  to  charge  the  real  estate  under  the  circum- 
stances.^ It  has  been  held,  that  doubtful  expressions  in  a  subse- 
quent correspondence  should  not  be  construed  as  revoking  an  ex- 
plicit guaranty.^ 

§  115.  When  surety  may  be  sued  jointly  with  principal. — 
When  principal  and  surety  are  jointly  liable  on  the  same  con- 
tract, they  may  be  sued  jointly  for  its  enforcement,  and  this 
whether  or  not  the  fact  of  suretyship  appears  from  the  instru- 
ment.* A  surety  who  signs  a  note  made  out  in  the  singular  num- 
ber, "  I  promise,"  and  adds  to  his  name  the  word  "  surety,"  is  lia- 
ble in  a  joint  suit  with  the  maker,  who  has  also  signed  the  note.* 
But  where  sureties  on  a  joint  and  several  note  had  been  released 
■pro  tanto  by  the  creditor  surrendering  a  security  for  the  debt  of 
less  value  than  the  debt,  it  was  held  that  the  principal  and  sure- 
ties could  not  be  sued  at  law  together,  because,  as  the  principal 
was  liable  for  the  full  amount,  and  the  sureties  for  only  a  portion, 
no  judgment  could  be  entered  according  to  the  liability  of  the 
parties.^  A  principal  bound  himself  by  bond  for  the  payment 
of  a  certain  sum  of  money.  Immediately  under  the  signature 
of  the  principal,  on  the  same  paper,  certain  sureties  wrote:  "We 

'  To  Ibis  effect,  see,  also,  Jordan  v.  ^Lanusse  v.  Barker,  3  Wheaton,  101. 

Dobbins,  122  Mas^s.  168.  "  Kleckner  v.  Klapp,  2  Watts  &  Serg. 

'^Harriss?;.   Fawcett,   Law  Rep.  8,  (Pa.)    44;    Craddock    v.    Armor,    10 

Chan.  Appl.  Cas.  86G;  see,  also,  same  Watts  (Pa.)  258. 
case  iia  court  belo«^,     Law  Rep.  15,  '  Dart  v.  Sherwood,  7  Wis.  523. 

Eq.  Cas.  311.  « Cammings  r.  Little,  45  Me.  183. 

11 


1G2  LIABILITY    OF    SUKETY    GENERALLY. 

hereby  Lind  ourselves  as  security  for  said  Olds  (principal)  for  tlie 
full  and  faithful  performance  of  the  above  agreement,"  and  signed 
and  sealed  under  these  words.  The  bond  was  executed  and  de- 
livered bj'  principal  and  sureties  at  the  same  time  and  on  the  same 
consideration.  Held,  they  were  all  liable  together  in  one  suit. 
The  court  said:  "Where  several  persons  execute  an  instrument 
in  parol,  or  under  seal,  upon  the  same  consideration,  at  the  same 
time  and  for  the  same  purpose,  and  taking  eifect  from  a  single 
delivery,  they  are  in  legal  effect  joint  contractors  or  obligors.  * 
Tlie  particular  form  or  manner  in  which  the  parties  have  affixed 
their  signatures  to  a  contract  or  bond,  is  immaterial.  It  matters 
not  whether  those  who  execute  as  sureties  sign  their  names  di 
rectly  under  that  of  the  principal,  and  then  append  to  each  name 
tlie  fact  of  signing  merely  as  surety,  or  whether,  as  in  this  in- 
stance, the  sureties  write  between  their  names  and  that  of  the 
principal  that  they  sign  as  securities,  and  then  affix  their  signa- 
tures." *  The  same  thing  was  held,  when  at  the  foot  of  a  money 
bond  a  surety  had  written:  "I  *  join  in  the  above  obligation 
with     ^     (principal)  and  am  his  security  for  the  above  sum  of 

""  ;"  ^  and  where,  under  a  contract  for  the  payment  of  wages, 
a  surety  wrote:  "I  *  agree  to  stand  as  surety  for  *  (princi- 
pal) in  the  above  agreement."  ^  A  and  B,  being  partners,  dis- 
solved their  partnership,  and  B  executed  an  agreement  to  A  that 
he  would  pay  the  firm  debts.  C  signed  this  agreement  with  B, 
writing  before  his  name  the  word  "  security."  The  firm  was  at 
the  date  of  the  agreement  indebted  to  D,  who  sued  A,  B  and  C, 
in  a  joint  action  for  his  debt,  and  it  was  held  they  were  liable,  on 
the  ground  that  C  was  a  surety,  and  primarily  liable,  and  the 
contract  having  been  made  for  the  benefit  of  the  creditors  of 
the  firm,  any  of  the  creditors  might  sue  on  it.*  Where  a 
third  party  guarantied  a  lease,  as  follows  :  "  For  value  re- 
ceived, 1  guaranty  the  payment  of  the  rent,  as  stipulated  by  said 

*  (principal),  incase  of  non-payment  by  him;"  it  was  held 
that  the  guarantor  and  lessee  could  not  be  sued  jointly  for 
rent.  The  court  said:  "The  undertaking  or  contract  of  the 
guarantor  was  distinct  from  that  of  the  principal  and  collateral 

'Stage  V.  Olds,   12  Ohio,  158,  per  « ^twell's  Admr.  r.Towles,  1  Munf. 

Read,  J.;  to  same  effect,  see  Leonard      (Va.)  175. 

r.  Sweetzer,  16  Ohio,  1.  ^  Watson  v.  Beabout,  18  Ind.  281. 

*  Dunlap  V.  McNeil,  35  Ind.  316. 


KECOYERT    ON   MONET    COITNTS   AGAINST    SURETY.  163 

thereto,  and  liis  liability  dependent  upon  a  contingency,  namely: 
the  non-payment  of  rent  by  the  lessee." '  The  same  thing  was 
held  where,  under  a  lease,  sureties  wrote:  "For  the  payment  of 
said  contract  being  fulfilled  on  the  part  of  said  *  (principal), 
we,  the  undersigned,  will  become  responsible;"*  and  where,  on  a 
lease  under  seal,  a  guaranty  not  under  seal,  was  as  follows:  "I 
hereby  become  security  for  ^  (principal)  for  the  rent  specified 
in  the  within  lease." '  But  where  a  party,  not  the  lessee,  joined 
in  the  execution  of  a  lease,  and  guarantied  on  his  part  that  the 
payments  of  rent  should  be  made  as  the}^  came  due,  it  was  held 
that  he  might  be  jointly  sued  with  the  lessee.*  Where  a  stranger 
to  a  note  payable  in  clocks,  at  the  time  of  its  execution,  wrote  on 
its  back:  "  I  guaranty  the  fulfillment  of  the  within  contract;"* 
and  where,  under  similar  circumstances,  a  stranger  to  a  note  pay- 
able to  bearer,  indorsed  it:  "  For  value  received,  I  guaranty  the 
payment  of  the  within  note,  and  waive  notice  of  non-payment,"' 
it  was  held,  that  the  maker  and  indorser  might  be  sued  jointly. 
But  where  a  third  party  wrote  on  the  back  of  a  bond:  "  I  do 
join  with  *  (principal)  as  his  security  for  the  performance  of 
the  agreement  mentioned  in  the  present  note,"  it  was  held,  that 
he  could  not  be  sued  jointly  with  the  maker,  on  the  ground  that 
their  undertakings  were  distinct  and  difierent.'^ 

§  116.  "When  recovery  on  common  money  counts  cannot  be 
had  against  surety — Surety  for  alimony  cannot  be  compelled  by 
motion  to  pay  it — Other  cases.-;— A  joint  and  several  promissory 
note  was  signed  by  two,  one  adding  to  his  name  the  word 
"  surety."  They  were  sued  on  the  common  money  counts.  Held, 
no  recovery  could  be  had  on  those  counts  against  the  surety.  The 
court  said:  "The  rule  is  nearly  or  quite  universal  that  there  can 
be  no  recovery  against  a  surety  where  his  character  appears  on 
the  face  of  the  instrument,  without  declaring  specially  on  the 
contract.  ■^''  In  the  common  case  of  a  suit  against  the  makers 
of  a  promissory  note,  the  instrument  may  be  given  in  evidence 
under  the  money  counts,  for  the  reason  that  the  note  is  evidence 
of  money  lent  to  or  had  and  received  by  the  makers  to  the  plain- 

'  Virden  v.  Ellsworth,  15  Incl.  144,  ^  Goles'  Admx.  v.  Yan  Arman,    13 

per  Hanna,  J.  Ohio,  336. 

2  Cross  V.  Ballard,  46  Vt.  415.  « Prosser  v.  Laqueer,  4  Hill  (N.  Y.) 

3  Turney  v.  Penn,  16  111.  485.  420. 

*  McLott  r.  Savery,  11  Iowa,  323.  ' Preston  v.  Davis.S  Ark.(3 Eng.)167. 


1Q4:  LIABILITV    OF    SURETY    GENERALLY. 

tiff's  use.  But  when  one  of  them  signs  as  a  surety  for  the  other, 
and  that  fact  appears  on  the  face  of  the  instrument,  the  note  fur- 
nishes no  evidence  that  he  received  the  whole  or  any  part  of  the 
consideration.  Indeed,  it  proves  the  contrary."  ^  AVIiere  a  stat- 
ute provided  that  the  maker,  drawer,  indorser  or  acceptor  of  a 
bill  of  exchange  or  promissory  note  might  be  joined  in  one  suit, 
it  was  held  that  this  did  not  authorize  a  joint  suit  against  the 
maker  and  guarantor  of  a  promissory  note,^  it  having  been  pre- 
viously decided  by  the  same  court,  that  in  the  absence  of  a  statute 
the  maker  and  guarantor  of  a  note  could  not  be  sued  together.' 
A  statute  provided  that  in  case  of  a  foreclosure  of  a  mortgage,  a 
decree  for  any  balance  due  after  sale  of  the  mortgaged  premises, 
miglit  be  made  against  any  of  the  parties  to  the  suit  who  were 
liable.  Held,  that  a  mortgagee  who  assigned  the  mortgage  and 
guarantied  the  debt,  was  a  proper  but  not  a  necessary  party  to  a 
suit  to  foreclose  the  mortgage,  and  a  personal  decree  might  be 
rendered  against  him  for  any  deficiency.^  Under  nearly  the  same 
circumstances,  it  has  been  held  that  the  guarantor  was  not  a 
proper  party  to  the  foreclosure  suit,  and  that  no  personal  decree 
could  be  rendered  against  liim.^  The  surety  for  alimony  in  a  di- 
vorce suit  cannot  be  compelled  to  pay  the  alimony  by  motion,  but 
must  be  sued  on  his  bond.° 

§117.  When  surety  who  is  not  liable  at  law  will  not  be 
charged  in  equity. — AVhen  the  Surety  in  a  joint  obligation  dies, 
there  is  no  remedy  at  law  on  the  obligation  against  his  estate,  and 
in  the  absence  of  fraud  or  mistake,  equity  will  not  charge  his 
estate  with  the  payment  of  such  obligation.  Where  an  obliga- 
tion is  joint,  and  all  the  obligors  participated  in  tiie  consideration, 
or  there  is  any  previous  equity  which  imposes  a  moral  obligation 
to  pay  on  all  the  obligors,  there  a  court  of  equity  will  enforce  the 
obligation  against  the  estate  of  the  deceased  obligor,  because  the 
reasonable  presumption  is  that  the  parties  intended  the  obliga- 
tion to  be  joint  and  several,  but  tlirough  fraud  or  mistake  it  was 

'  Butler  V.  Rawson,  1  Denio,  105,  per  lateral  and  not  original,  see  Smith  r. 

Bronson,   C.  J.;   to  same  effect,   see  Hyde,  19  Vt.  54. 

Wells  V.  Girling,  8  Taunt.  737.  ^Jarman  v.  Wiswall,  9   E.  C.  Green 

"  Stewart  v.  Glenn,  5  Wis.  14.  (N.  J.)  267. 

^Ten  Eyck  v.   Brown,    S   Pinney,  « Borden  t;.  Gilbert,  13  Wis.  670. 

(Wis.)  452;    as  to  who  may  sue   on  a  *  Appeal  of  Ernestine  Guenther,  40 

guaranty,  see  Jenness  v.  True,  30  Me.  Wis.  115. 
438;  as  to  when  an  agreement  is  col- 


SURETY  KOT   LIABLE  AT  LAW,  KOT  CHARGED  IN  EQUITY.         165 

made  joint  only.  But  "this  presumption  is  never  indulged  in  the 
case  of  a  mere  surety,  whose  duty  is  measured  alone  by  the  legal 
force  of  the  bond,  and  who  is  under  no  moral  obligation  whatever 
to  pay  the  obligee,  independent  of  his  covenant,  and  consequently 
there  is  nothing  on  which  to  found  an  equity  for  the  interposition 
of  a  court  of  chancer}-."  The  surety  may  have  had  the  obliga- 
tion made  joint,  with  express  reference  to  the  contingency  of  his 
death.'  Where  a  joint  appeal  bond  is  signed  by  two  sureties, 
and  one  of  tliem  dies,  his  estate  is  discharged  from  liability,  both 
at  law  and  in  equitj^,  and  the  fact  that  thebond  was  given  in  pur- 
suance of  a  statute,  does  not  affect  the  liabilit}^  thereunder.  In 
cases  of  suretyship,  the  contract  is  the  measure  of  liability,  and 
a  statute  under  which  it  is  made  will  not  be  so  construed  as  to 
enlarge  the  obligation  of  the  surety  beyond  the  terms  of  his  con- 
tract.^ Pi'incipal  and  surety  signed  a  joint  and  several  bond,  by 
which  they  bound  themselves  as  "  principals"  for  the  conduct  of 
the  principal.  Suit  was  brought  on  the  bond  jointly  against  the 
principal  and  surety,  and  a  joint  judgment  was  recovered  against 
them.  Afterwards  the  principal  became  insolvent,  and  the  sure- 
ty died.  Held,  that  the  remedy  at  law  being  gone  against  the 
estate  of  the  surety,  equity  would  not  charge  it.  The  bond 
was  merged  in  the  judgment,  and  after  judgment  the  obligee 
could  not  have  sued  the  principal  and  surety  separately.'  A 
mortgage  to  secure  the  debt  of  F.  &  Bro.  to  the  comj^lainant, 
was  executed  by,  F.  and  his  u'ifc  on  premises  which  were  the  sep- 
arate property  of  the  wife;  afterwards  the  complainant  executed 
a  satisfaction  of  the  mortgage,  upon  F.'s  promise  to  give  a  new 
mortgage  and  obtain  the  wife's  signature  thereto,  which  signa- 
ture, however,  the  wife  refused  to  give.  Held,  the  satisfaction 
would  not  be  annulled,  and  the  mortgage  enforced  against  Mrs. 
F.,  she  being  only  liable  as  surety,  and  there  being  no  accident 
or  mistake  in  the  execution  of  the  satisfaction,  and  no  fraud  on 
her  part.     The  Court  said:     "The    obligation  of   the  surety  is 

^  Pickersgill  t\  Lalieiis,  15  Wallace,  v.  Iveson,  3  Drewry,  177;    Towne   v. 

140,  per Davis,V. ;  Harrison  P.  Field,  2  Ammidown,   20  Pick.   535;     Contra, 

Wash.  (Va.)  136;  Ptisley  v.  Brown,  67  Smith  v.  Martin,  4  Des.  Eq.  (So.  Car.) 

New  York,  160;   Pecker  v.  Julius,  2  148. 

Browne  (Pa.)  31;  Weavers.  Shryock,  6  ^  ^ood  v.  Fisk,  63  New  York,  245. 

Serg.  andRawle  (Pa.)  262;  Rawstone  ^ United  States  r.  Archer's   Exr.  1 

V.  Parr,  3 Russell,  539;  Kennedy  v.  Car-  Wallace,  Jr.  173;  disapproving, United 

penter,  2  Wharton  (Pa.)  344;    Other  States  v.  Cushman,  2  Sumner,  426. 


IGG  LIABILITY    OF    SURETY    GENERALLY. 

strictl  JKJ'is,  and  if  his  contract  is  not  binding  at  law,  there  is  no 
liahilitj  in  equity  founded  on  the  consideration  between  the  prin- 
cipal parties,  A  court  of  equity  will  not  enforce  a  liability  upon 
a  surety  where  he  is  not  held  at  law." ' 

§  118.  "When  equity  will  charge  surety  who  is  not  liable  at 
law. — Equity  will,  however,  in  many  instances,  afford  relief 
against  a  surety  M'here  there  is  no  remedy  at  law.  Thus,  equity 
will  set  up  a  lost  bond  against  a  surety.  "  The  reason  is,  that 
the  surety  is  not  discharged  by  the  loss  of  the  bond,  and  the  court 
only  relieves  against  the  accident  by  setting  up  the  evidence  of 
the  debt."  ^  Equity  will  reform  a  joint  guardian's  bond  so  as 
to  hold  it  joint  and  several,  where  it  appears  clearly  to  have  been 
the  intention  of  the  parties  to  give  a  joint  and  several  bond,  and 
relief  will,  in  such  case,  be  granted  against  the  estate  of  a  de- 
ceased surety.  The  court  said :  "  When  the  contract  does  not  ex- 
press the  agreement  or  intention  of  the  parties  to  the  injury  of 
the  obligee,  and  this  is  clearly  made  to  appear,  equity  M'ill  reform 
the  instrument,  as  well  against  sureties  as  principals."  ^  "Where, 
by  mistake,  property  mortgaged  by  a  surety  is  misdescribed,  equity 
will  reform  the  mortgage.  In  this  case,  the  court  said:  "  Where 
the  surety  is  aware  of,  and  consents  to  the  purpose  to  which  his 
obligation  is  to  be  applied,  and  it  is  so  used,  though  without  con- 
sideration, except  that  advanced  to  the  principal,  equity  will 
reform  any  mistake  of  fact,  so  that  the  obligation  shall  fulfill  its 
purpose."  *  Where  23rincipal  and  sureties  signed  a  prison-bounds 
bond,  and  which,  by  mistake,  misrecited  the  judgment  on  which  the 
principal  was  imprisoned,  it  was  held  that  equity  would  reform 
the  bond.'  Where  principal  and  surety  signed  a  joint  bond  by 
mistake,  the  intention  being  to  sign  a  joint  and  several  bond,  and 
the  principal  died,  it  was  held  the  surety  could,  by  bill  in  equity, 
compel  the  payment  of  the  bond  by  the  estate  of  the  principal  as 
a  specialty  debt.^     A  agrees  to  be  bound  in  a  bond  as  surety  to 

'  Leffingwell  v.  Freyer,  21  Wis.  398,  bond  joint  and'  several,  and  estate  of 

per  Dixon,  C.  J.;  to  similar  effect,  see  surety  chargeable,  seeBesore  v.  Potter, 

Ratcliffe  v.  Graves,  1  Vemon,  196.  12  Serg.  and  Rawle.  (Pa.)  154. 

^Korney's  Adnir.  tJ.  Kerney's  Heirs,  *  Prior  r.   Willaims,  3  Abb.    Rep.' 

6  Leigh.   (Va.)  478,   per  Carr,  J.;  to  Om.  Cas.  624,  per  Peckham,  J. 
same  effect,  see  East  India  Company  ^  Smith  v.  Allen,  Saxton  (N.  J.)  43. 

V.  Boddam,  9  Vesey,  464.  « Pride  v.  Boyce,  Rice  Eq.  (So.  Car.) 

2  Olmsted  v.    Olmsted,  38  Ct.  309,  275. 
per  Butler,  C.  J.    For  case  holding 


WHEN  EQUITY  WILL  CHARGE  SURETY  NOT  LIABLE  AT  LAW.      167 

B,  and  signs  and  seals  it  accordingly,  but  by  tlie  neglect  of  the 
clerk  A's  name  is  not  inserted.  Tlie  obligee  shows  A  the  condi- 
tion, and  his  name  and  seal,  and  demands  payment,  and  threatens 
to  sue  him  unless  he  gives  fresh  security,  which  A  agrees  to  do, 
but,  after  finding  the  mistake,  refused,  not  being  bound  at  law, 
yet  equity  will  compel  him.'  In  cases  such  as  the  preceding, 
equity  affords  relief  on  the  ground  of  accident  or  mistake;  but 
Mhere  it  is  sought  to  reform  an  instrument  against  a  surety  on 
the  ground  of  mistake,  evidence  of  the  necessary  facts  must  be  so 
clear  as  to  leave  no  doubt.  It  has  been  said  that  "  although  an 
instrument  may  undoubtedly  be  reformed  on  parol  proof,  yet 
where,  as  here,  the  relief  sought  is  adverse  to  the  pre-existent 
equity  of  a  surety,  the  evidence  should  be  so  clear  as  to  leave  the 
fact  without  a  shadow  of  a  doubt."^  A  devise  to  executors  with 
authority  to  sell  the  real  estate  of  the  testator  for  the  payment  of 
his  debts,  applies  as  well  to  a  joint  and  several  bond,  executed  by 
him  as  surety  for  his  co-obligor,  as  to  any  other  debts,  and  a  court 
of  chancery  will  compel  a  sale  of  the  real  estate,  so  as  to  pay  such 
bond.^  A  law  concerning  the  sale  of  school  lands,  prescribed  the 
form  of  the  notes  to  be  given  for  the  purchase  of  such  lands,  made 
them  joint  and  several  obligations,  and  specially  declared  that  tlie 
surety  should,  in  all  respects,  be  liable  as  principal.  A  principal 
and  surety  signed  a  joint  note  for  the  purchase  of  such  lands, 
and  the  surety  died.  Held,  the  estate  of  the  surety  was  charge- 
able in  equity  for  the  amount  of  the  note;  the  decision  being 
placed  on  the  ground  alone  that  the  statute  made  the  surety 
liable  as  principal,  and,  being  a  public  law,  must  be  presumed  to 
have  been  known  to  all  the  parties.*  A  trustee  having  in  his 
hands  funds  arising  out  of  property  sold  under  a  decree  of  court, 
became  delinquent,  and  having  wasted  the  fund,  died  intestate, 
having  before  committed  breaches  of  his  bond,  for  which  both  he 
and  his  sureties  would  have  been  liable  at  law  if  he  had  lived. 
A  claimant  of  the  fund  in  the  hands  of  the  trustee  could  not 
place  himself  in  a  position  to  proceed  at  law  on  the  bond,  be- 
cause of  the  death  of  the  trustee.  Held,  equity  would  afford 
him  relief  on  the  bond  against  the  sureties.     There  was  a  clear 

1  Crosby  v.  Middleton,  Finch's  Pre-      428,  per  Gibson,  C.  J.;  Smith  v.  Allen, 
cedents,  30.').  Saxton  (N.  J.)  43. 

2  Moser  v.  Libenguth,  2  Rawle.  (Pa.)  ^  Berg  v.  Radcliff,  6  Johns.  Ch.  302. 

*  PoweD  V.  Kettle,  1  GiUman  (111.)  491. 


1(38  LIABILITY    OF    SURETY   GENERALLY. 

right  against  the  sureties,  which  could  not  be  enforced  at  law 
because  of  the  accident  of  the  death  of  the  principal,  and  the 
fact  that  there  was  a  right,  and  no  remedy  at  law,  was  sufficient 
alone  to  give  equity  jurisdiction.  The  law  on  this  subject  was 
well  and  concisely  stated  by  the  court,  as  follows:  "  A  court  of 
equity  will  do  nothing  to  extend  the  liability  of  securities  be- 
yond the  clear  intent  and  import  of  their  contract.  But  if  to 
such  an  extent  they  cannot  at  law  be  held  liable  by  reason  of 
fraud,  accident  or  mistake,  a  court  of  equity,  to  prevent  a  failure 
of  justice,  will  interfere  and  enforce  the  execution  of  their  con- 
tract, according  to  its  obvious  meaning  and  design."  ' 

§  119.  When  new  promise  revives  liability  of  surety  or  guar- 
antor.— If  facts  exist  which  are  sufficieiit  to  discharge  a  surety  or 
iruarantor,  and  he,  with  full  knowleda^e  of  the  existence  and  effect 
of  such  facts,  promises  to  pay  the  debt,  the  weight  of  authority  is 
that  he  will  be  bound."  Where  time  had  been  given  which  would 
have  discharged  the  surety  on  a  note,  and  he,  knowing  this,  paid 
part  of  the  note,  and  promised  to  pay  the  balance,  it  was  held,  he 
had  waived  any  defense  he  might  have  had  by  reason  of  such  giv- 
ing of  time.'  Where  the  holder  of  a  note  had  been  guilty  of 
such  laches  as  would  have  discharged  the  guarantor,  but  the 
guarantor,  on  demand  of  the  holder,  paid  him  the  interest  due  on 
the  note,  knowing  and  protesting  he  was  not  liable  on  his  guar- 
anty, it  was  held  he  had  waived  the  laches,  and  continued  liable 
on  the  guaranty;  and  this,  notwithstanding  the  fact  that  he  paid 
the  interest,  because  of  the  threat  of  the  holder,  that,  unless  he 
2)a!d  the  interest  he  would  sue  him  for  other  large  debts  which 
he  owed  the  holder.^  But  the  surety  or  guarantor  will  not  be 
bound  by  such  new  promise,  unless  he  made  the  same  with  a  full 
knowledge  of  the  facts,  which  would  entitle  him  to  a  discharge,^ 
and  of  their  legal  effect.^  After  time  has  been  given  by  the  cred- 
itor, which  would  discharge  the  surety  on  a  note,  his  liability  is 
not  revived  by  a  payment  made  on  the  note  by  him  with  money 
of  principal,  although  at  the  time  of  such  payment,  he  gave  no 
intimation  that  the  money  was  not  his  own.'     It  has  been  held 

'  Brooks  V.  Brooke,  12  Gill  &  Johns.  ^  Gamage     v.    Hutchins,     23     Me. 

(Md.)  306,  per  Dorsey,  J.  565. 

2  Ashford  v.  Robinson,  8  Ired.  Law  « Robinson  v.  Offutt,  7  T.  B.  Monroe 

(Nor.  Car.)  114.  (Ky.)  540;  contra  Rindskopfy.  Uoman, 

•      « Hinds  V.  Ingham,  31  111.  400.  28  Ohio  St.  516. 

♦Sigourney  v.   Wetherell,   G    Met.  ^Lime  Rock  Banls:  r.  Mallett,  42  Me. 

(Mass.)  553.  349. 


STATUTE    OF    LIMITATIONS.  169 

that  after  the  guarantor  of  a  note  is  discharged  by  the  laches  of 
the  holder,  a  new  promise  on  his  part  will  not  bind  him,  unless 
there  is  also  a  new  consideration.^  Where  the  sureties  on  an 
official  bond  were,  in  fact,  not  liable  tor  the  default  of  their  prin- 
cipal, and  without  seeing  the  bond  acknowledged  they  were  liable 
and  promised  to  pay  the  defalcation,  but  afterwards,  upon  inspec- 
tion of  the  bond,  were  advised  they  were  not  liable,  and  then 
refused  to  pay,  it  was  held  that  as  they  promised  under  a  mis- 
take of  law,  they  were  not  liable." 

§  120.  Statute  of  limitations — "When  new  promise  or  partial 
payment  by  principal  takes  case  out  of  statute  as  to  surety. — If 
a  principal  and  surety  execute  a  joint,  or  joint  and  several  note, 
bond,  or  other  obligation,  a  new  promise,  or  a  partial  payment  by 
the  principal,  will  avoid  the  bar  of  the  statute  of  limitations  as 
to  the  surety  as  well  as  to  the  principal.^  This  is  placed  upon  the 
ground  that  as  they  are  jointly  liable,  the  admission  or  act  of  one 
is  the  admission  or  act  of  both.  A  written  acknowledgment  of 
the  debt  by  the  principal  within  the  period  prescribed  by  the 
statute  of  limitations,  will  not  take  the  case  out  of  the  statute 
against  a  guarantor  for  the  price  of  goods  sold  the  principal, 
because  in  such  case  the  principal  and  guarantor  are  not  joint 
debtors.*  If  a  claim  against  a  deceased  surety,  as  surety,  is  not 
presented  till  his  estate  is  settled,  it  is  barred  the  same  as  any 
other  claim,  and  it  makes  no  diiference  that  the  claim  had  been 
proved  against  the  estate  of  the  principal,  and  it  could  not  be 
known  till  that  estate  was  settled,  how  much  of  the  claim  it 
would  pay."  Where  a  surety  is  about  to  be  sued,  and  before  the 
statute  of  limitations  has  barred  the  debt,  he  hands  to  the  cred- 
itor for  suit,  a  note  which  had  been  executed  to  him  by  the  prin- 
cipal as  an  indemnity,  it  is  such  an  admission  of  indebtedness  on 
his  part  as  will  start  the  statute  to  running  from  that  time,  as  to 
him.''     It  has  been  held  that  the  sureties  in  a  judgment  at  law, 

^Van  Derveer  v.  Wright,  6  Barb.  Rice,  9  Minn.  13;  Caldwell  v.  Sigour- 

(N.  Y.)  547.  ney,  19  Ct.  37;  Perkins  v.  Barstow,  G 

2  Welch  V.  Seymour,  28  Ct.  387.  Rhode  Is.  505;  Zents'  Exrs.  v.  Heart, 

3  Hunt  V.   Bridg  am,   2  Pick.  581;  8  Pa.   St.   337;     contra,   Coleman  v. 
Perham    v.  Raynall,   9  Moore,   566;  Forbes,  22  Pa.  St.  156. 

Craig  V.  Calloway  County  Court,  12  ^ Meade  u.  McDowell,  5  Binney  (Pa.) 

Mo.  94;  Frye  v.  Barker,  4  Pick.  382;  195. 

Joslyn  V.  Smith,  13  Vt.  353;  Pease  v.  ^RatcUff  v.  Leunig,  30  Ind.  289. 

Hirst,  10  Barn.  &  Cress.  122;  Clark  v.  ^R^gge^  ^_  j^^  Roque,  11  Ala.  352. 
Sigoumey,  17  Ct.  511;  Whitaker  v. 


170  LIABILITY   OF   SURETY   GENERALLY. 

wliich  lias  been  enjoined  by  tlie  unconscionable  litigation  of  the 
principal,  until  it  lias  become  barred  by  the  statute  of  limitations, 
are  in  privity  with  the  principal,  and  bound  to  all  the  legal  con- 
sequences of  his  acts,  and  will  not,  therefore,  be  allowed  to  avail 
themselves  of  the  advantage  of  the  statute  thus  obtained,  and 
they  will  be  enjoined  in  equity  from  setting  it  up  at  law.'  The 
statute  of  limitations  commences  running  in  favor  of  a  surety  or 
guarantor  from  the  time  he  is  liable  to  suit,  and  this,  as  already 
seen,  may  or  may  not  be  the  same  time  the  principal  becomes  so 
liable.' 

'  Davis  r.  Hoopes,  33  Miss.  173.  10  Richardson  Law  (So  Car.)  543;  Sol- 

*  On  this  subject,  see  the  Governor  v.      lee  v.  Meugy,  1  Bailey  Law  (So.  Car.) 
Stonum,  11  Ala.  679;  Bank  v.  Knotts,      620. 


CHAPTER  IV. 


OF  THE  LIABILITY  OF  THE    SUKETY    WHEN   THE    PRINCIPAL 
IS  DISCHAEGED,    OR  NOT  ORIGINALLY  BOUND. 


Section. 

When  surety  not  liable  if  princi- 
cipal  not  bound.  General  prin- 
ciples          121 

Discharge  of  principal  generally 
releases  surety         .  .         .  122 

Surety  not  disci'  arged  by  release 
of  principal  when  remedies 
against  surety  reserved,  when 
he  is  fully  indemnified,  etc.      .  123 

Miscellaneous  cases  on  discharge 
of  surety  when  principal  is  not 
bound,  etc 124 

When  discharge  of  principal  after 


Section, 
judgment    against    surety    re- 
leases surety      ....  125 

Surety  not  discharged  if  principal 
released  by  act  of  law      .        .  126 

Whether  surety  bound  when  prin- 
cipal does  not  sign  the  obliga- 
tion         127 

When  surety  bound  for  contract 
of  infant  or  married  woman, 
which  is  not  binding  on  them  .  128 

Discharge  of  surety  does  not  re- 
lease principal  .  .        .  129 


§  121.  "When  surety  not  liable  if  principal  not  bound — Gen- 
eral Principles. — The  obligation  of  a  surety  or  guarantor  is 
usiiallj  accessory  to  that  of  the  principal,  and  as  a  general  rule, 
wherever  there  is  no  principal  there  can  be  no  surety;  and 
whatever  discharges  the  principal  releases  the  surety.  This  is 
not,  however,  universally  true.  With  reference  to  this,  it  has 
been  well  said  that  "  A  surety  is  not  entitled  to  every  excep- 
tion which  the  principal  debtor  may  urge.  He  has  a  right  to  op- 
pose all  which  are  inherent  to  the  debt;  not  those  which  are  per- 
sonal to  the  debtor.  Pothier  distinguishes  them  into  exceptions 
in  2^crsonain  and  exceptions  in  rem.  The  latter,  which  go  to  the 
contract  itself,  such  as  fraud,  violence,  or  whatever  entirely  avoids 
the  obligation,  may  be  pleaded  by  the  surety;  but  the  former, 
which  are  grounded  on  the  insolvency  or  partial  solvency  of  the 
debtor,  or  which  result  from  a  cession  of  his  property,  or  are  the 
consequence  of  his  minority,  cannot  be  opposed  to  the  creditor." ' 
Where  a  statute  prohibited  the  making  of  a  particular  kind  of 


^Baldwin  v.  Gordon,  12 Martin  (La.) 
0.  S.  378,   per  Porter,   J.     See,   also, 


State  V.  Bugg,  6  Robinson  (La.)  63; 
Jarratt  v.  Martin,  70  Nor.  Car.  459. 


(171) 


1  1  2  LIABILITY    OF    SURETY. 

note  b}'  a  bank,  it  was  held  that  such  a  note  was  void,  and  a  guar- 
anty of  the  note  was  likewise  void.'  Where  property  of  the  prin- 
cipal sufficient  to  satisfy  the  debt  was  levied  on,  it  was  held  that 
such  levy  satisfied  the  debt  as  to  the  principal,  and  consequently 
as  to  the  surety.  The  court  said:  "Itwoukl  be  as  diflicult  for 
me  to  conceive  of  a  surety's  liability  continuing  after  the  princi- 
pal obligation  was  discharged,  as  of  a  shadow  remaining  after  the 
substance  was  removed."  *  A  justice  of  the  peace  required  two 
parties  who  were  before  him  for  examination,  to  enter  into  a  joint 
recognizance  with  surety,  when  he  had  no  right  to  require  a  joint 
obligation  from  both,  but  only  had  power  to  require  a  several  re- 
cognizance from  each.  Such  a  joint  recognizance  was  given,  and 
it  was  held  that  it  was  void  as  to  the  principals,  and  consequent- 
ly as  to  the  surety.  The  court  said:  "  It  is  a  corollary,  from  the 
very  definition  of  the  contract  of  suretyship,'  that  the  obligation 
of  the  surety  being  accessory  to  the  obligation  of  the  principal 
debtor  or  obligor,  it  is  of  its  essence  that  there  should  be  a  valid 
obligation  of  such  principal,  and  that  the  nullity  of  the  princi- 
pal obligation  necessarily  induces  the  nullity  of  the  accessory. 
"Without  a  principal,  there  can  be  no  accessory.  J^or  can  the 
obligation  of  the  surety,  as  such,  exceed  that  of  the  principal."' 
But  a  guaranty  of  a  note,  described  therein  by  the  name  of  its 
maker,  its  date,  amount,  and  day  of  payment,  and  which  is 
shown  to  tlie  guarantor,  and  a  commission  paid  to  him  at  the 
time  of  signing  the  guaranty,  binds  him  to  pay  the  note  upon 
non-payment  thereof  by  the  maker,  after  the  usual  demand  and 
notice,  although  the  note  is  made  jjayable  to  the  maker's  own  or- 
der, and  never  indorsed  by  him,  and  the  want  of  such  indorse- 
ment is  not  known  to  either  party  till  after  the  day  of  payment. 
He  had  agreed  to  guaranty  that  particular  instrument,  and  was 
bound  b}^  his  obligation.^  It  was  agreed  between  the  agent  of  a 
railroad  company  and  the  plaintiff,  that  no  appeal  should  be  taken 
from  an  award  to  be  made  in  a  pending  arbitration  between  the 
company  and  the  plaintiff,  but  both  parties  should  abide  the 
award.     Thereupon,  the  president  of  the  company,  together  with 

'  Swift  V.  Beers,  3  Denio,  70.  Stori-s,  J.   Holding',  that  because  bond 

'Farmn-s'   &  Mechanics'   Bank  v.  is  void  as  to  principal  because  of  du- 

Kingsley,  2  Douglass  (Mich.)  379.  See,  ress,    it  is  not  void  as  to  surety,  who 

also,  StuU  V.  Davison,  12  Bush  (Ky.)  was  under  no  duress;  see  Jones  v.  Tur- 

.  167;  Evans  v.  Raper,  74  Nor.  Car.  639.  ner,  5  Littell  (Ky.)  147. 

•Ferry  v.  Burchard,   21  Ct.  597,  per  « Jones  v.  Thayer,  12  Gray,  443. 


DISCHAKGE    OF    rKINCIPAL    RELEASES    SURETY.  173 

tlie  agent,  personally  guarantied  to  the  plaintiff  tlie  performance 
by  the  company  of  said  agreement.  Held,  the  guarantors  were 
liable  in  case  of  a  breach  of  the  agreement,  even  if  the  latter  was 
not  binding  on  the  company,  and  the  guarantors  were  estopped 
from  denying  the  existence  of  the  company.' 

§  122.  Discharge  of  principal  generally  releases  surety. — As  a 
general  rule,  if  the  principal  is  released  by  the  creditor,  without 
reservation,  the  surety  is  also  thereby  discharged.  Thus,  a  joint 
judgment  was  obtained  against  the  principals  and  sureties  on  a 
note.  The  creditor  agreed  with  one  of  the  principals  to  discharge 
him  from  the  judgment  if  he  would  give  security  for  the  pay- 
ment of  about  one-fourth  of  the  amount  thereof,  and  the  security 
was  accordingly  given.  Held,  the  sureties  were  thereby  dis- 
charged. The  Court  said  that  if  in  such  a  case  the  surety  was 
held  liable,  "  he  could  not  recover  over  against  the  principal,  be- 
cause he  is  discharged  from  the  debt,  and  owes  the  creditor  noth- 
ing, and  the  surety  could  not  recover  for  money  paid  to  the  use 
of  the  principal,  as  he  owes  nothing;  and  when  the  surety  makes 
the  payment,  it  cannot  be  for  the  use  of  the  principal  debtor."  '^ 
A  creditor  agreed  to  accept  from  the  principal  5^.  in  the  pound 
in  full  of  his  demand,  upon  having  a  collateral  security  for 
that  sum  from  a  third  person.  He  was  induced  to  agree  to  this 
by  tlie  representation  of  the  agent  of  the  principal,  that  a  surety 
would  continue  liable  for  the  residue  of  the  debt.  Held,  the 
surety  was  discharged.  The  representations  being  as  to  the  legal 
effect  of  the  instrument,  were  immaterial,  and  did  not  avoid  it.^  A 
was  indebted  to  B  and  others,  and  C  was  surety  for  the  debt  due  B. 
Afterwards  A  became  bankrupt,  and  all  his  creditors  signed  a  com- 
position deed,  agreeing  to  accept  7s.  in  the  pound,  in  full  payment 
of  their  claims,  in  drafts  accepted  by  C  as  surety.  B  added  before 
his  name  to  the  composition  deed  the  words,  "Without  preju- 
dice to  any  additional  security  we  may  hold."  Held,  notwith- 
standing the  reservation,  B  could  not  enforce  C's  original  liability. 
If  all  the  creditors  had  held  securities  from  C  for  the  full  amount 
due  them,  then  such  a  reservation  would  have  made  the  composi- 
tion nugatory.  Moreover,  to  allow  B.  to  enforce  this  liability, 
might  operate  to  the  prejudice  of  the  other  creditors.* 

1  Mason  v.  Nichols,  22  Wis.  376.  » Lewis  ».  Jones,  4  Barn.  &  Cress. 506. 

'^Trotter     v.    Strong,   63    111.   272;  *  Grundy  v.  Meighan,  7  Irish  Law 

Brown  v.  Ayer,  24  Ga.  288.  Rep.  519. 


174  LIABILITY    OF    SUKETY. 

§  123.  Surety  not  discharged  by  release  of  principal,  when 
remedies  against  surety  reserved,  when  he  is  fully  indemnified, 
etc. — If  the  creditor,  at  tlie  time  lie  releases  the  principal,  re- 
serves his  remedies  against  the  surety,  such  release  amounts  to 
a  covenant  not  to  sue  only,  and  does  not  discharge  the  surety.* 
This  has  been  held  where  the  creditor  by  mistake  executed  an 
absolute  release  to  the  principal,  but  the  agreement  verbally  was 
that  the  creditor's  rights  against  the  surety  should  be  reserved.* 
By  a  mortgage  deed  the  debtor  covenanted  to  pay  the  principal 
and  interest  of  a  debt,  and  a  surety  covenanted  to  pay  the  in- 
terest. The  principal  afterwards  by  deed  assigned  his  property 
to  a  trustee,  on  trust,  to  sell  and  divide  the  proceeds  among  his 
creditors.  The  creditors  released  the  debtor  from  the  debts  due 
them,  respectively,  but  there  was  a  proviso  in  the  deed  of  release, 
that  nothing  therein  should  affect  any  right  or  remedy  which  any 
creditor  might  have  against  any  other  person  in  respect  of  any 
debt  due  by  the  principal.  Held,  the  surety  was  not  discharged. 
The  court  said:  "The  release  cannot  be  construed  to  be  abso- 
lute, because  then  no  rights  could  be  reserved  in  any  case,  and 
the  courts  have  therefore  held  that  such  a  release  is  not  to  be 
construed  as  absolute,  but  only  as  a  covenant  not  to  sue.  That 
being  so,  the  remedy  is  gone  as  between  the  debtor  and  creditor, 
inasmuch  as  the  creditor  cannot  sue  the  debtor,  but  as  against  all 
other  persons  the  rights  of  the  creditor  are  reserved." '  Judg- 
ment was  recovered  against  a  surety,  and  a  separate  judgment 
was  recovered  against  the  principal,  which  included  also  other 
claims.  The  creditor  afterwards  offered  to  give  the  control  of 
the  judgment  against  the  principal  to  the  surety,  but  the  surety 
refused  it.  Afterwards  the  creditor  agreed  with  the  principal 
that  he  never  would  enforce  the  judgment  against  him,  and 
assigned  the  judgment  against  the  principal  to  a  third  person 
for  the  princiyjal's  benefit,  but  he  reserved  the  right  to  proceed 
on  the  judgment  against  the  surety.     Held,  the  surety  was  not 

^  Bateson    v.  Gosling,   Law  Rep.  7  ^  Bank   of  Montreal  ti.  McFaul,  17 

Com.  Pi.  9;  Hall  v.  Thompson,  9  Up.  Grant's  Ch.  R.  234. 

Can.  C.  P.  R.  257;  see,  also.  Wood  v.  ^  Green  v.  Wynn,  Law  Rep.  4  Ch. 

Brett,  9  Grant's  Ch.  R.  452;  BeU  v.  Appl.  Cas.  204,  per  Lord  Hatherly,  C; 

Manning,    11    Grant's    Ch.  R.    142;  affirming,  Green  v.  Wynn,  Law  Rep.  7 

Union  Bank  v.  Beech,  3  Hurl.  &  Colt,  Eq.  Cas.  28. 
672;    to  contrai-y  effect,  see  Webb  v. 
Hewitt,  3  Kay  &  Johns.  438. 


WHEN   PEINCIPAL    NOT    BOUND.  175 

discharged.'  A,  B  and  C  executed  a  joint  and  several  bond,  as 
guardians,  with  T  as  surety.  The  ward,  after  coming  of  age, 
executed  a  release  to  A,  adding:  "  But  this  release  is  not  to  ap- 
ply to  or  affect  my  claims  against  B,  my  active  guardian,  and 
whose  account  remains  unsettled."  Held,  in  equity,  that  the 
release  as  to  A  was  good,  and  that  it  was  also  a  good  defense  to 
T,  so  far  as  he  was  surety  for  A,  but  that  T  remained  bound  for 
B  and  C.''  If,  before  the  release  of  the  principal,  the  surety  has 
paid  a  part  of  the  debt,  and  secured  the  remainder,  such  release 
will  not  discharge  such  surety.^  A  surety  v/ho  is  fully  indem- 
nified is  not  discharged  by  the  release  of  the  principal.  In  such 
case  the  surety  himself  occupies  the  position  of  a  principal.* 

§  124.  Miscellaneous  cases  on  discharge  of  surety  -when 
principal  is  not  bound,  etc. — Certain  parties  professing  to  be 
the  representatives  of  a  school  district,  made  a  note  with  sureties, 
and  raised  money  on  it  to  build  a  school  house.  The  district  had 
no  power  to  borrow  money  for  such  a  purpose,  and  it  was  held 
that  it  was  not  liable  on  the  note,  but  that  the  sureties  were 
liable  thereon."  It  has  been  held  that  the  discharge  of  one 
of  two  joint  guardians  by  the  Orphan's  Court,  does  not  discharge 
the  surety  on  their  official  bond.  This  was  put  on  the  ground 
that  the  court  had  the  power  to  do  this  when  the  suretj^  became 
bound,  and  he  must  be  presumed  to  have  consented  that  it  might 
be  done.^  A  surety  concurs  with  the  principal  in  suggesting  to 
the  creditor,  who  is  pressing  for  his  money,  to  accept  a  transfer 
of  a  mortgage,  which  the  principal  knows  to  be  fictitious,  but  the 
surety  believes  to  be  genuine.  The  creditor,  believing  the  mort- 
gage to  be  genuine,  accepted  it,  released  the  surety,  and  erased 
his  name  from  the  securities.  Upon  the  faith  of  this  release,  the 
friends  of  the  surety  advanced  him  money  for  the  purpose  of  re- 
lieving him  from  all  other  liabilities.  Upon  discovery  of  the 
fraud,  it  was  held  that  the  creditor  was  entitled  to  be  restored  to 
all  his  rights  against  the  surety,  in  the  same  manner  as  if  he  had 
never  been  released,  nor  his  name  erased  from  the  securities.'' 

^  Hubbell  V.  Carpenter,  5  New  York,  *  Moore  v.  Paine,  12  Wend.  123. 

171.  ^  Weare  V.  Sawyer,  44   New  Hamp. 

'■'Kirby  v.  Turner,  6  John's  Ch.  R.  198. 

242;  Kii-by  v.  Taylor,  Hopkins'  Ch.  R.  «  flocker  v.  Woods'  Exr.  33  Pa.  St. 

309.  466. 

3  Hall  V.  Hutchons,  3  Mylne  &  Keen,  ">  Scholefield     r.     Templer,    4    De- 

426.  Gex  &  Jones,  429;    affirming-,  Scheie- 


176  LIABILITY    OF    SUEETY. 

The  period  of  limitation  to  actions  on  bonds  was  fifteen  years, 
and  against  officers,  for  breaches  of  ofiicial  duty,  one  year.  Suit 
was  brought  on  the  official  bond  of  an  auditor  against  his  sureties, 
for  dereliction  of  duty  on  the  part  of  the  auditor  more  than  a 
year  after  he  went  out  of  office.  Held,  the  statute  was  a  bar 
in  favor  of  the  sureties.'  If  the  creditor  sues  the  principal  and 
takes  judgment  for  less  than  the  amount  due,  and  such  judgment 
is  satisfied,  he  cannot  maintain  a  suit  against  the  surety  for  the 
remainder  of  the  debt."  A  testator  appointed,  as  his  executors, 
two  persons  who  were  indebted  to  him  on  a  bond — one  as  princi- 
pal, the  other  as  surety.  Held,  the  bond  was  discharged  by  the 
appointment  of  the  princijDal  as  executor,  and  thereby  became 
functus  officio  as  to  the  surety.' 

§  125.  When  discharge  of  principal,  after  judgment  against 
surety,  releases  surety. — If  the  principal  is  discharged  because  of 
matters  inherent  in  the  transaction,  even  after  judgment  against 
the  surety,  the  latter  will  be  exonerated  thereby.  Thus,  a  sherifi" 
and  his  sureties  were  sued  on  his  official  bond  for  his  non-feasance, 
and  severed  in  their  defenses.  Judgment  was  rendered  against 
the  sureties  on  demurrer,  and  the  next  day  the  issue  was  tried 
against  the  slieriff  and  he  was  found  not  guilty.  Held,  the  sure- 
ties might  therefore  maintain  a  bill  to  perpetually  enjoin  the 
judgment  against  them.  The  court  said  the  rights  of  the  surety 
were  the  same  after  as  before  judgment.  AVlien  the  liability  of 
the  principal  ceases,  that  of  the  surety  should  cease  also.  This 
principle  was  controlling  even  though  the  sureties  knew  all  the 
facts  before  the  judgment  against  them,  except  the  discharge  of 
the  principal.  That  was  a  fact  which  occurred  after  the  judg- 
ment, and  was   the   fact  which  discharged    them."      In.  a  suit 

field  V.  Templar,  Johns.   (Eng.  Ch.)  accommodation  drawer  of   a  note  is 
155.  not  released  by  the  release  of    the 
'  State  V.  Blake,  2  Ohio  St.  147.  payee,  where  the  holder  did  not  know 
*  Couch  r.  Waring,  9  Ct.  261.  of  the  suretyship,  see  Carstairs  v.  Rol- 
^  Eichelberger  v.  Morris,  6   Watts  leston,  1  Marshall,  207.     Holding  that 
(Pa.)  42.     Where  an  instniment  guar-  the  accommodation  acceptor  of  a  b  11 
antied  certain  notes,   the   amount  of  of  exchange  is  not  discharged  if  the 
which  was  carried  out  and  footed  up,  holder,  who  did  not  know  of  the  sure- 
it  was  held  the  guarantor  was  liable  tyship  when  he  took  the  draft,  after 
for  the  full  amount,  although  the  pr^n-  learning  that  fact,  releases  the  drawer, 
cipal  was  entitled  to  a  reduction  as  See    Howard    Banking    Company  v. 
against  the  creditor,  James  v.  Long,  Welchman,  6  Bosw.  (N.  Y.)  230. 
63  Nor.  Car.  218.     Holding  that  the  *Ames  v.  Maclay,  14  Iowa,  281. 


WHEN   PKINCIPAL    RELEASED    BY   ACT   OF   LAW.  177 

against  a  sheriff  and  the  sureties  on  liis  official  bond,  judgment 
was  recovered  against  all  of  them.  The  sheriff  alone  appealed, 
and  on  a  final  trial  was  acquitted.  Held,  the  judgment  against 
the  sureties  could  not  afterwards  be  enforced.*  G  sold  B  and  W, 
negroes  introduced  into  the  State,  in  violation  of  law.  B  and  W  ^ 
executed  a  note  in  part  payment  for  the  slaves,  which  M  indorsed. 
G  sued  B  and  W  at  law,  on  the  note,  and  they  set  up  the  illegality 
of  the  consideration  thereof  and  were  discharged.  G  at  the 
same  time  sued  M,  the  indorser,  who  being  ignorant  of  the  facts 
concerning  the  consideration,  made  no  defense,  and  judgment 
was  had  against  him.  Held,  M  could  sustain  a  bill  for  perpetual 
injunction  as  to  the  judgment  against  him,  on  the  ground  that 
his  principal  had  been  discharged,  and  this  although  he  might 
have  ascertained  the  facts,  as  to  the  consideration,  by  inquiry,^  A 
bought  slaves  and  gave  his  notes  with  B,  as  surety  for  the  price. 
Having  cause  to  rescind  the  sale,  A  brought  suit  to  procure  a 
rescission  thereof.  Pending  such  suit,  the  vendor  brought  suit 
against  A  and  B  on  the  note,  and  recovered  judgment  against  B 
by  default.  A  afterwards,  in  his  rescission  suit  obtained  a  decree 
canceling  the  notes!  Held,  the  effect  of  that  decree  was  to  dis- 
charge B,^  The  principal  in  a  bond  for  the  payment  of  money, 
was  sued  alone  for  a  breach  thereof,  and  upon  pleas  of  payment 
and  accord  and  satisfaction,  there  was  a  verdict  and  judgment  in 
his  favor.  Held,  this  was  not  a  defense  to  a  surety  who  was 
afterwards  sued  on  the  same  bond.  The  court  said  the  judgment 
would  not  have  been  conclusive  against  the  surety,  if  it  had  been 
against  the  principal,  and  should  not  be  conclusive  in  his  favor, 
when  in  favor  of  the  principal.'  The  fact  that  the  discharge  of 
the  principal,  should  in  such  case  of  itself  release  the  surety, 
seems  to  have  been  overlooked. 

§  126.  Surety  not  discharged  if  principal  released  by  act 
of  law. — The  discharge  of  the  principal  by  the  act  of  the  law,  in 
which  the  creditor  does  not  participate,  will  not  release  the 
surety.  A  familiar  illustration  of  this  rule  is  that  of  the  dis- 
charge of  the  principal  in  bankruptcy  or  under  insolvent  laws,  in 
which   case  the  surety   is   generally  held   not  to  be  discharged 

1  Beall  V.  Cochran,  18  Ga.  38.  "  Dickason  v.  Bell,  13  La.  An.  249. 

^  Miller  r.  Gaskins,  1  Smedes  &  Mar.  *  State  Bank  v.  Robinson,  13  Ark. 

Ch.  R.  (Miss.)  524.  (8  Eng.)  214. 

12 


178  LIABILITY    OF    SURETY. 

thereby.'  A  creditor  pending  an  action  against  a  surety  wlio  con- 
tested his  liability,  proved  the  debt  under  a  commission  of  bank- 
ruptcy against  the  principal,  and  by  his  signature  enabled  the 
bankrupt  to  obtain  his  certificate,  though  the  surety  had  given 
him  notice  not  to  sign  it.  Held,  the  surety  was  not  discharged.^ 
'A  state  statute  provided  that  "The  obligation  of  the  surety  is 
accessory  to  that  of  his  principal,  and  if  the  latter  from  any 
cause  becomes  extinct,  the  former  ceases,  of  course."  A  princi- 
pal having  been  discharged  in  bankruptcy,  it  was  held  that  the 
statute  was  only  an  affirmation  of  the  common  law,  and  the 
words  "  from  any  cause  "  meant  any  cause  dependent  on  the  act 
or  negligence  of  the  creditor,  and  that  the  surety  was  not  dis- 
charged. The  court  said:  "  The  discharge  of  the  principal,  which 
discharges  a  surety,  must  be  a  discharge  by  some  act  or  neglect 
of  the  creditor,  and  a  discharge  by  operation  of  law  being  as  it 
is  against  the  consent  and  beyond  the  power  of  the  creditor,  does 
not  discharge  the  surety."^  Judgment  having  been  recovered 
against  a  debtor,  he  gave  bond  with  surety  that  the  judgment 
should  be  paid  within  nine  months.  The  debtor  was  afterwards 
arrested  by  virtue  of  the  judgment,  and  discharged  under  the  in- 
solvent law.  Held,  the  surety  was  not  thereby  released.  The 
court  said:  "That  the  arrest  on  a  capias  ad  satisfaciendum  is,  in 
itself  a  satisfaction  of  the  debt,  is  a  position  not  to  be  maintain- 
ed unless  the  j)laintiif  consented  to  the  discharge;  then,  indeed, 
the  debt  is  gone.  *  Here  the  plaintiff  gave  no  consent  to  the 
discharge  of  ^  (the  principal).  It  was  effected  by  act  of  law, 
which,  like  the  act  of  God,  injures  no  man."  * 

§  127.  Whether  surety  bound  when  principal  does  not  sign 
the  obligation. — As  to  whether  the  surety  is  bound  wlien  the 
principal,  who  is  named  in  the  instrument,  does  not  sign  it,  there 
is  great  conflict  of  authority.  It  has  been  held  that  in  such  case 
the  surety  is  not  liable,  and  in  holding  this  with  reference  to  the 
bail  bond  in  a  civil  suit,  the  court  said:  "  Xow  we  think  it  essen- 

'  Alsop  V.  Price,  1  Douglas   (Eng.)  Marsh  (Ky.)  488;  Jones  v.  Hagler,  6 

160;  Gamett  v.  Roper,  10  Ala.  842;  Jones,  Law  (Nor.  Car.)  542;  but  see 

Cowper  v.  Smith,  4  Mees.  &   Wels.  Jones  v.  Knox,  46  Ala.  53. 

519;  Kane  v.  Ing-raham,  2  Johns.  Cas.  °  Browne  v.  Carr,  2  Russell,  600. 

403;  Seaman  tJ.  Drake,  1  Caines,  Rep.  ^Phillips  v.   Solomon,  42  Ga.  192. 

9;  Inglis  t\  Macdougal,  1  Moore,  196;  per  McKay,  J. 

Claflin  V.  Cogan,  48  New  Hamp.  411;  ^Sharpe  v.  Speckenao'le,  3   Serg.  & 

Moore    v.  Wallers'    Heirs,    1    A.   K.  Rawle  (Pa.)  463,  per  Tilghman,  C.  J. 


WHEN    PRINCIPAL    DOES    NOT    SIGN    THE    OBLIGATION.  179 

tial  to  a  bail  bond,  tliat  tlie  party  arrested  slionld  be  principal. 
It  is  recited  that  lie  is,  and  tlie  instrument  is  incomj)lete  and 
void  without  his  signature.  The  remedy  of  the  sureties  against 
the  principal  would  wholly  fail,  or  be  much  embarrassed  if  such 
an  instrument  as  this  should  be  held  binding.  Suppose  they  wish 
to  arrest  the  principal  in  some  distant  place,  or  in  some  other 
state,  what  evidence  would  they  carry  with  them  that  they  were 
his  bail?  There  is  nothing  to  estop  him  from  denying  the  fact, 
nor  any  proof  that  it  was  true."  '  Where  in  the  body  of  a  county 
treasurer's  official  bond,  his  name  was  recited,  but  he  neither 
signed  nor  sealed  it,  the  sureties  who  signed  it  were  held  liable. 
The  court  said  the  treasurer  was  liable  to  the  county  without  any 
bond,  and  also  liable  to  his  sureties  for  any  amount  paid  by  them, 
even  though  he  did  not  sign  the  bond.  They  might  not  be  able 
to  produce  the  bond  as  evidence,  but  this  was  no  greater  incon- 
venience than  if  the  bond  had  been  lost.  The  words  of  the  statute 
which  provided  for  giving  bond  with  surety,  might  well  be  con- 
strued to  mean  giving  bond  by  surety.'^  One  who  has  by  an  in- 
strument indorsed  on  a  lease,  guarantied  the  fulfillment  of  the 
covenants  of  the  lease  by  the  lessees,  naming  them,  is  bound  by 
his  guaranty,  although  the  lease  is  executed  by  only  one  of  the 
lessees,  where  it  appears  that  both  lessees  occupied  the  demised 
premises,  and  had  possession  of  all  the  property  mentioned  in  the 
lease  for  the  whole  term.^  It  has  been  held  that  a  bond  given  for 
the  purpose  of  obtaining  a  dissolution  of  an  attachment  of  part- 
nership property,  and  executed  in  the  name  of  the  firm  by  only 
one  of  two  partners  named  as  principals  therein,  cannot  be  en- 
forced against  the  surety  without  evidence  of  the  assent  of  the 

'  Bean  v.  Parker,  17  Mass.  591,  per  ditioned  that  the  principal  should  pay 

Parke;,  C.  J.     To  same  effect,  with  for  such  goods  as  he  should  purchase, 

reference  to  surety  on  prison-bounds  sea    Williams  v.  Marshall,   42  Barb, 

bond,   Curtis    v.   Moss,   2    Robinson,  (N.  Y.)  524.     "Where  a  bond  provided 

(La)  367;  with  reference  to  surety  on  for  the  payment  by  each  of  several 

bond  of  a  county  treasurer,  People  v.  sureties,  of  $1,000,  itwas  held  that  the 

Hartley,  21   Cal.  585;  and  with  refer-  bond  showed  an  obligation  on  behalf 

ence  to  the  surety  on  an  administra-  of   each   surety  to  pay  the  *  sum  of 

tor's  bond.   Wood    •/•.    Washbm-n,   2  $1,000,  and  on  behalf  of  the  principal 

Pick.  24.     Contra,  Parker  f.  Bradley,  to  pay  the  aggregate  of  all  the  sums. 

2  Hill  (N.  Y.)  584;  Miller  v.  Tunis,  10  People  v.  Breyfogle,  17  Cal.  504. 

Up.  Can.  C.  P.  R.  423.  » McLaughlin  v.  McGovern,  34  Barb. 

*  State  V.   Bowman,    10  Ohio,  445.  (N.Y.)  208. 
To  same  effect,  where  a  bond  was  con- 


180  LIABILITY   OF   SURETY. 

other  partner  to  its  execution.^  But  where  one  member  of  a  firm 
signed  the  firm  name  to  a  note  under  seal,  which  consequently  did 
not  bind  the  other  member,  it  was  held  that  a  surety  on  the  note 
was  not,  for  that  reason,  discharged.^  Where  a  surety  signed  a 
bond  which  purported  to  have  been  signed  by  the  principal,  but 
had  not  in  fact  been  signed  by  him  nor  by  his  authority,  it  was 
held  the  surety  was  not  discharged,  unless  he  delivered  the  bond 
as  an  escrow.^  Principal  and  surety  entered  into  a  recognizance 
for  the  appearance  of  the  principal  at  the  March  term  of  the  court, 
to  answer  an  indictment.  The  principal  did  not  appear,  and  the 
surety  alone,  at  the  March  term,  entered  into  a  recognizance  for 
the  appearance  of  the  principal  at  the  May  terra.  No  default  was 
entered  on  the  first  recognizance.  The  principal  did  not  appear 
at  the  May  term :  Held,  the  surety  was  liable  on  the  last  recogni- 
zance. He  would  not  have  been  liable  but  for  the  previous  recog- 
nizance; because,  otherwise,  the  surety  might  control  the  person  of 
the  principal  without  his  consent.  But  in  this  case,  the  princi- 
pal, having  entered  into  the  first  recognizance,  could  not  make 
this  objection,  and  the  surety  could  not  complain  because,  by 
entering  into  the  last  recognizance,  he  saved  a  forfeiture  of  the 
first." 

§  128.  ^ When  surety  bound  for  contract  of  infant  or  married 
woman,  which  is  not  binding  on  them. — Where  a  party  becomes 
the  surety  of  a  married  woman,  an  infant,  or  other  person  inca- 
pable of  contracting,  he  is  bound,  although  the  principal  is  not. 
With  reference  to  this,  it  has  been  said  that :  "  Fraud,  illegality, 
or  mistake,  which  may  rescind  the  contract  of  the  principal,  in- 
duces the  discharge  of  the  sureties;  but  if  the  invalidity  of  the 
contract  rests  upon  reasons  personal  to  the  principal,  in  the  nature 
of  a  privilege  or  protection,  the  principal  acquires  a  personal 
defense  against  the  contract,"  but  the  contract  subsists,  and  the 
sureties  may  be  charged  thereon.  The  disability  of  the  principal 
may  be  the  very  reason  why  the  surety  was  required.^     An  infant 

'  Russell  V.  Annable,  109  Mass.  72.  Holding  that  several  persons  who  ex- 

'^  Stewart  v.   Behm,  2  Watts  (Pa.)  ecute  a  bond,  may  show  by  parol  that 

366.  they  are  all  sureties  for  a  person  who 

^  Loew  V.   Stocker,   68  Pa.  St.  226.  did  not  sign  the  bond,  see  Artcher  v. 

To  similar  effect,  with  reference  to  a  Douglass,  5  Denio,  509. 

promissory  note,  see  Chase  v.  Hathom,  *  Smyley  v.  Head,  2  Richardson  Law 

61  Me.  505.  (So.  Car.)  590,  per  Frost  J.  St.  Albans 

*  Combs  V.  The  People,  39  111.  183.  Bank  v.  DiUon,  30  Vt.  122;  Kimball  v. 


DISCHARGE    OF    SURETY   DOES   NOT    RELEASE   TRINCIPAL.        181 

bouo-lit  a  tract  of  land  and  gave  his  note  with  sureties  for  the 
purchase  money.  On  coming  of  age  he  disaffirmed  the  sale. 
Held,  the  sureties  were  discharged  thereby.  The  court  said  :  "As 
a  general  proposition,  it  is  undoubtedly  correct  that  infancy  does 
not  protect  the  indorsers  or  sureties  of  an  infant,  or  those  who 
have  jointly  entered  into  his  voidable  undertaking.  But  the  cases 
in  which  this  principle  has  been  decided,  are  clearly  distinguish- 
able from  the  present  one.  Here  the  undertaking  of  the  sureties 
o-oes  to  the  whole  consideration.  *  Bv  the  disaffirmance  of  the 
contract  the  plaintiff  gets  back  his  land,  and  the  consideration 
which  upheld  the  contract  is  extinguished.  It  would  be  a  strange 
doctrine  which  would  give  him  back  his  land  and  allow  him  to 
recover  from  the  sureties  the  purchase  money  also.'" 

§  129.  Discharge  of  surety  does  not  release  principal. — If  the 
creditor  release  the  surety,  he  does  not  thereby  discharge  the 
principal.  The  reason  why  the  discharge  of  one  joint  debtor  dis- 
charges all,  is  that  the  responsibility  of  the  one  not  released  is 
thereby  increased.  This  reason  does  not  apply  to  the  case  of  the 
discharge  of  the  surety,  for  the  surety  is  not  liable  to  the  princi- 
j)al,  but  the  principal  is  bound  to  indemnify  the  surety.  The 
discharge  of  the  surety  is  nothing  beyond  what  the  principal 
himself  was  bound  to  effect,  and  therefore  no  injustjpe  is  done 
him.'' 

Newell,  7  Hill,  116  ;  Nabb  v.  Koontz,  Wagner,  J.  Patterson  v.  Cave,  61  Mo. 

17  Md.  283;  Davis  v.  Statts,  43  liid.  439.     See,  also,  on  this  subject,  Kuns' 

103;    Weed   Sewing  Machine  Co.  v.  Exr.  v.  Young,  34  Pa.  St.  60. 

MaxweU,63Mo.486;Tale«?.Wheelock,  ^jviortland  v.  Himes,  8  Pa.  St.  265; 

109  Mass.  502;  Jones  v.  Crosfchwaite,  Bridges  v.  Phillips,   17    Texas,   128; 

17  Iowa,  393.  Burson  v.  Kincaid,  3  Pen.  &   Watte, 

1  Baker  v.  Kennett,  54  Mo.  82  per  (Pa.)  57. 


CHAPTER  Y. 


OF   CONTINUING    GUARANTIES. 


When  .  guaranty  ambiguous, 
may  be  explained  by  parol. 
No  general  rule  for  determin- 
ing whether  guaranty  continu- 
ing or  not 

Continuing    guaranties  —  Instan- 
ces       ...        .        131, 

When  guaranty  not  exhausted  by 


ection. 
it 


130 


132 


Section, 
the   advance    of    the    amount 
mentioned  therein     .        .        .  133 

When  guaranty  exhausted,  and 
when  not  exhausted,  by  the  ad- 
vance of  the  amount  mentioned 
therein 134 

What  not  continuing  guaranty — 
Instances        .        .       135,  136,  137 


§  130.  "When  guaranty,  ambiguous  it  may  be  explained  by 
parol — No  general  rule  for  determining  vrhether  guaranty  con- 
tinuing or  not. — A  question  often  arising  upon  guaranties,  is, 
whether  the  guaranty  is  confined  to  a  single  credit  or  transaction, 
or  whether  it  is  continuing,  and  covers  several  credits  or  trans- 
actions. As  already  shown,  the  true  rule  for  construing  guaran- 
ties is  to  give  eflTect  to  the  intention  of  the  parties,  as  expressed 
in  the  instrument,  read  in  the  light  of  the  surrounding  circum- 
stances. Numerous  instances  of  the  views  on  this  subject,  enter- 
tained by  the  courts,  will  be  found  upon  an  examination  of  the 
cases  cited  in  this  chapter.  "When  the  words  of  a  guaranty  will 
equally  well  bear  the  construction  that  it  is  or  is  not  continuing, 
an  ambiguity  arises  which  nia}''  be  explained  by  parol  evidence  of 
the  situation  and  surroundings  of  the  parties,  and  the  construc- 
tion which  they  have  put  upon  it.*  This  subject  is  well  illustra- 
ted by  the  following  remarks  of  a  learned  judge,  made  in  deciding 
whether  a  guaranty  was  continuing  or  not:  "  It  is  obvious  that 
we  cannot  decide  that  question  upon  the  mere  construction  of  the 
document  itself,  without  looking  at  the  surrounding  circumstances 
to  see  what  was  the  subject  matter  which  the  parties  had  in  their 
contemplation  when  the  guaranty  was  given.  It  is  j? roper  to  as- 
certain that  for  the  purpose  of  seeing  what  the  parties  were  deal- 
ing about;  not  for  the  purpose  of  altering  the  terms  of  the  guar- 

'  Hotchkiss  V.  Barnes,  34  Ct.  27. 
(182) 


CONTINUING    GUAEANTIES.  183 

anty  by  words  of  moutli  passing  at  the  time,  bat  as  part  of  the 
conduct  of  the  parties,  in  order  to  determine  what  was  the  scope 
and  object  of  the  intended  guaranty.  Having  done  that,  it  will 
be  proper  to  turn  to  the  language  of  the  guaranty,  to  see  if  that 
language  is  capable  of  being  construed  so  as  to  carry  into  eifect 
that  which  appears  to  have  been  really  the  intention  of  botli  par- 
ties." '  Where  a  guaranty  is,  from  its  terms,  clearly  not  a  con- 
tinuing one,  but  is  limited  to  one  transaction,  parol  evidence  of 
the  previous  dealings  or  of  the  dealings  contemplated  between 
the  creditor  and  the  principal,  or  that  the  guarantor  had  previ- 
ously agreed  to  give  the  plaintiff  a  guaranty  for  future  advances, 
and  that  the  goods  were  sold  rehdng  on  sucb  guaranty,  or  that 
the  relations  of  the  principal  parties  were  well  known  to  the  guar- 
antor, is  not  admissible  to  show  the  guaranty  to  be  a  continuing 
one,  for  that  would  be  to  contradict  the  instrument,  and  not  ex- 
])lain  an  ambiguity.''  As  the  terras  of  guaranties,  and  the  circum- 
stances under  which  they  are  given,  differ  in  almost  every  case,  no 
definite  rules  for  determining  whether  a  guaranty  shall  be  con- 
sidered a  continuing  one  or  not,  can  be  given.  The  only  way  to 
illustrate  the  subject  is  to  refer  to  facts  of  decided  cases,  and  this 
course  will  be  pursued. 

§  131.  Continuing  guaranties — Instances. — A  guaranty  was 
as  follows:  "  Mr.  J.  B.  Maynard  being  about  to  commence  the 
retailing  of  dry  goods  at  Connelton,  Indiana,  and  desiring  to 
open  a  credit  with  the  firm  of  James  Lowe  &  Co.,  of  the  city  of 
Louisville,  I  hereby  undertake  and  contract  with  said  Lowe  & 
Co.,  to  become  responsible  to  tbem  for  the  amount  of  any  bill  or 
bills  of  merchandise  sold  by  them  to  said  Maynard,  agreeably  to 
the  terms  of  sale  agreed  upon  between  the  parties,  without  re- 
quiring said  Lowe  &  Co.  to  prosecute  suit  against  said  Maynard 
therefor."  Held,  to  be  a  continuing  guaranty  and  not  confined 
to  the  first  few  bills  bought  by  Maynard  upon  commencing  busi- 
ness.' When  the  writing  was:  "  In  consideration  of  your  sup- 
plying Mr.  John  McGuire  supplies  of,  etc.,  out  of  your  store 
for  his  business,  we  agree  to  become  responsible  for  the  payment 
of  $200  for  such  goods,  and  guaranty  the  payment  of  that 
amount,  whether  the  same  be  due  on  note  or  book  account  to 

iPerWil]es,.T.,inHeffielcU'.  Mead-  ^  Boston   &   Sandwich  Glass  Co.  r. 

ows,  Law  Rep.  4  Com.  PL  595.  Moore,  119  Mass.  435. 

3  Lowe  V.  Beckwith,  14  B.  Monroe  (Ky.)  150. 


184  LIABILITY    OF    GUARANTOR. 

you  for  said"  *  it  was  held  to  be  a  continuing  guaranty.* 
A  writinc  was  as  follows:  "To  whom  it  may  concern.  The 
bearer,  M.  R.,  son  of  the  subscriber,  is  about  to  establish  a  store 
in  Portland,  of  books  and  stationery,  and  now  goes  on  to  Boston 
to  obtain  an  assortment  of  stock  for  that  purpose.  He  will  com- 
mence on  a  limited  scale,  with  the  intention  of  enlarging  the 
business  next  spring.  He  wishes  to  purchase  school  books,  &c., 
upon  a  credit  of  four  or  six  months,  and  miscellaneous  books, 
paper,  etc.,  on  commission.  For  the  faithful  management  of 
the  business  and  punctual  fulfillment  of  contracts  relating  to  it, 
the  subscriber  will  hold  himself  responsible."  Held,  a  continu- 
ing guaranty  for  such  purchases  as  the  son  might  make.'  The 
following  was  held  to  be  a  continuing  guaranty:  "  In  considera- 
tion of  your  agreeing  to  supply  goods  to  K  at  two  months'  credit, 
I  agree  to  guaranty  his  present  or  any  future  debt  with  you  to 
the  amount  of  QOl.  Should  he  fail  to  pay  at  the  expiration  of 
the  above  credit,  I  bind  myself  to  pay  you  within  seven  days  of 
receiving  notice  from  you."  '  The  defendant's  son  being  indebted 
to  the  plaintiffs  for  coals  supplied  on  credit,  and  the  plaintiffs 
refusing  to  continue  to  supply  coals  unless  a  guaranty  was  given 
them,  the  defendant  gave  this  guaranty:  "In  consideration  of  the 
credit  given  by  the  H.  G.  C.  Co.  to  my  son  for  coal  supplied  by 
them  to  him,  I  hereby  hold  myself  responsible  as  a  guaranty  to 
them  for  the  sum  of  lOOl.,  and  in  default  of  his  payment  of  any 
accounts  due,  I  bind  myself  by  this  note  to  pay  to  the 
H.  G.  C.  Co.  whatever  may  be  owing  to  an  amount  not 
exceeding  the  amount  of  lOOl. "  Held,  a  continuing  guar- 
anty. The  court  said:  "The  question  in  these  cases  de- 
pends not  merely  on  the  words;  but  when  the  words  are 
at  all  ambiguous,  requires  a  consideration  of  the  circumstances 
to  aid  the  construction.     *     The  words  '  whatever  may  be  owing,' 

*  seem  not  suitable  to  a  specific  and  ascertained  sum  already 
due,  but  have  a  direct  and  proper  application  to  what  might  after- 
wards become  due."  *  A  letter  contained  the  following:  "I  do 
recommend  my  friend,  Mr.  J.  B.  Scudder,  of  the  parish  of  East 
Baton  Kouge,  a  planter,  and  any  funds  that  he  may  raise,  or  ac- 

'  Fennell  v.  McGuire,   21   Up.  Can.  *  Wood  v.  Priestner,   Law  Rep.   2 

C.  P.  R.  134.  Exch.  66,   per  KeUy,  C.  B.;    affirmed, 

*  Mussey  v.  Rayner,  22  Pick  223.  Wood  v.  Priestner,  Law  Rep.  2  Exch. 
» Martin  v.  Wright,  6  Adol.   &  Ell.  282. 

(N.  S.)  917. 


CONTINUING   GUARANTIES.  185 

ceptances,  in  case  lie  does  not  pay,  I  feel  bound  to  pay."  Held, 
a  continuing  guaranty,  the  guarantor  and  Scudder  being  both 
planters,  and  the  circumstances  showing  that  a  continuing  guar- 
anty was  intended.*  This  is  a  continuing  guaranty :  "  I  hold  my- 
self accountable  to  you  for  any  goods  Mr.  Francis  Murphy  may 
purchase  of  you  to  the  amount  of  2501.  currency."  ^  Also  the 
following:  "  Sir,  you  can  let  J.  L.  Day  have  what  goods  he  calls 
for,  and  I  will  see  that  the  same  are  settled  for."  ^ 

§  132.  Continuing  guaranties — Instances. — A  bought  from 
B  certain  hides,  but  before  they  were  delivered,  B  having  heard 
that  A  had  transferred  his  property,  refused  to  deliver  the  hides 
unless  C  would  become  responsible  therefor.  C,  learning  this, 
telegraphed  to  B:  ""We  agree  to  be  answerable  for  the  skins," 
and  afterwards  wrote,  vouching  for  A's  honesty,  and  concluding: 
"  What  you  have  heard  was  done  to  protect  him  from  a  dishon- 
est tradesman,  and  will  in  no  way,  we  hope,  be  to  the  injury  of 
his  creditors.  Having  every  confidence  in  him,  he  has  but  to 
call  upon  us  for  a  cheque,  and  have  it  with  pleasure,  for  any 
account  he  may  have  with  you,  and  when  to  the  contrary  we  will 
write  you."  Held,  the  letter  was  a  continuing  guaranty,  unlim- 
ited in  amount.  The  court  said:  "It  was  calculated  to  induce 
the  plaintiffs  to  give  credit  to  a  man  to  whom  they  would  not 
otherwise  have  given  it."  *  One  Tully,  being  about  to  go  into 
business,  and  desiring  credit,  a  relative  of  his  wrote  to  certain 
merchants  as  follows:  "  Please  let  Mr.  P.  Tully  have  the  paints, 
oils,  varnishes,  glass,  etc.,  he  wants.  I  will  be  security  for  the 
amount  for  what  he  will  owe  you."  Held,  a  continuing  guar- 
anty.^ The  material  part  of  the  guaranty  was:  "  I  will  guaran- 
ty their  engagements,  should  you  think  it  necessary,  for  any 
transaction  they  may  have  with  your  house."  Held,  the  guar- 
anty was  a  continuing  one,  and  in  force  till  countermanded  by 
the  guarantor." '  "  I  do  hereby  agree  to  guaranty  the  payment 
of  goods  to  be  delivered,  in  umbrellas  and  parasols  to  ^  ac- 
cording to  the  custom  of  their  trading  with  you,  in  the  sum  of 
200Z.",  is  a  continuing  guaranty.''     The  following  is  a  continuing 

'  Menard  v.  Scudder,  7  La.  An.  385.  ^  Boehne  v.  Murphy,  46  Mo.  57. 

"^ Ross  V.  Burton,  4  Up.  Can.  Q.  B.  ^ Grant  v.   Ridsdae,    2    Harris    & 

R.  357.           •  Johns.  (Md.)  186. 

^Hotchkiss  V.  Barnes,  34  Ct.  27.  ">  Hargreave  v.  Smee,  6  Bing.  244; 

*  Nothingham  Hide  Co.  v.  Bottrill,  Id.  8  Moore  &  Payne,  573. 
Law  Rep.  8  Com.  PL  694,  per  Keat- 
ing, J. 


186  LIABILITY    OF    GUARANTOE. 


is 


guaranty:  "  I  hereby  agree  to  guaranty  the  payment  to  A  for 
any  goods  which  may  be  purchased  of  him  by  B,  not,  however, 
binding  myself  to  become  responsible  for  a  larger  sum  than  live 
hundred  dollars,  except  by  another  special  agreement,  the  above 
guaranty  to  remain  in  force  until  it  is  withdrawn  by  me."  '  The 
following  is  a  continuing  guaranty:  "Whereas,  W.  C.  is  in- 
debted to  you,  and  may  have  occasion  to  make  further  purchases 
from  you,  as  an  inducement  to  3'ou  to  continue  your  dealings 
with  hun,  I  undertake  to  guaranty  you  in  the  sum  of  lOOZ,,  pay- 
able to  you  in  default  on  the  part  of  the  said  W,  C,  for  two 
months."  *  A  and  B  executed  a  bond  to  C  in  the  penal  sum  of 
$1,500,  conditioned  "  to  pay  or  cause  to  be  paid  to  C  all  sums  or 
sum  of  moneys,  responsibilities,  debts  and  dues  which  B  might 
owe  C,  equal  to  the  sum  of  $1,500,  either  contracted  or  which 
might  thereafter  be  contracted."  Held,  this  was  a  continuing 
guaranty,  aud  covered  indebtedness  of  B  to  the  extent  of  $1,500, 
although  part  of  the  debts  contracted  by  B,  under  the  guaranty, 
had  been  paid  by  him.  Held,  also,  that  notes  of  B  made  to  a 
third  party,  and  by  such  third  party  indorsed  to  C,  were  within 
the  terms  of  the  guaranty.  The  court  said:  "Such  a  debt  is 
a  debt  due  to  *  (C),  as  much  as  any  other.  This  is  the 
criterion  the  parties  have  chosen  to  adopt,  and  it  is  not  for  the 
court  to  restrict  it."  ^ 

§  133.  'When  guaranty  not  exhausted  by  the  advance  of  the 
amount  mentioned  therein. — A  bond  was  conditioned  to  indem- 
nity and  save  harmless  the  obligees  for  "  such  sums  as  they  in 
their  banking  business  should  within  ten  years  advance  or  pay,  or 
be  lia])le  to  advance  or  pay,  for  or  on  account  of  tlieir  accc])ting, 
discounting,  etc.,  any  bill  of  exchange,  etc.,  which  A  B  should 
from  time  to  time  draw  upon  or  make  payable,  etc.,  at  their  house; 
and  also  other  sums  which  they,  within  the  period  aforesaid, 
should  otherwise  lay  out,  pay,  etc.,  on  the  credit  of  A  B,  or  on 
his  account,  and  also  all  such  wages  and  allowances  for  advancing, 
paying,  etc.,  such  bills,  etc.,  not  exceeding  5,000?.  in  the  whole, 
together  with  interest  on  such  advances."  Held,  a  continuing 
guaranty,  and  not  exhausted  by  the  first  advance  of  5,000?.* 
"Where  the  instrument  was  as  follows:    "Sir,  I  hereby  guaranty 

'  Melendy     r.     Capen,    120     Mass.  ^  Lewis    v.  Dwight,  10  Ct.  95,   per 

222.  Williams,  J. 

*  Allan  r.  Kenning-,  9  Bing.  618  Zc?.  2  *Wiliams  v.   Rawlinson,    R^'an  & 

Moore  &  Scott,  768.  Moody,  233. 


CONTINUIXG    GUARANTIES.  187 

tlie  payment  of  any  anionnt  of  goods  yon  may  give  to  B,  not  ex- 
ceeding 40Z.  sterling,"  it  was  held  to  be  a  continuing  guaranty, 
the  first  part  being  unlimited,  and  the  second  part  only  limiting 
it  as  to  amount.'  A  guaranty  was  as  follows:  "  1  agree  to  be  re- 
sponsible for  the  price  of  goods  purchased  of  you,  either  by  note 
or  account,  by  H,  at  any  time  hereafter,  to  the  amount  of  $1,000." 
Goods  were  sold  on  the  credit  of  the  guaranty  to  the  amount  of 
more  than  $1,000,  which  were  paid  for,  and  more  goods  were  sold, 
when  H  became  insolvent,  owing  more  than  $1,000  that  had  been 
sold  on  the  credit  of  the  guaranty.  Held,  the  guaranty  was  con- 
tinuing, and  not  exhausted  by  the  first  sales,  amounting  to  $1,000, 
and  that  the  guarantor  was  liable  for  $1,000.  The  court  said: 
"  When  by  the  terms  of  the  undertaking,  by  the  recitals  of  the 
instrument,  or  by  a  reference  to  the  custom  and  course  of  dealing 
between  the  parties,  it  appears  that  the  guaranty  looked  to  a  fu- 
ture course  of  dealing  for  an  indefinite  time,  or  a  succession  of 
credits  to  be  given,  it  is  to  be  deemed  a  contiuuing  guaranty,  and 
the  amount  expressed  is  to  limit  the  amount  for  which  the  guar- 
antor is  to  be  responsible,  and  not  the  amount  to  which  the  deal- 
ing or  whole  credit  given  is  to  extend."  ^  The  same  thing  was 
held,  when  the  guaranty  was:  "  I  will  be  and  am  responsible  for 
any  amount  for  which  '^  may  draAV  on  you,  for  any  sum  not 
exceeding  $1,500,  on  condition  of  your  acceptance  of  the  same."  ' 
Also,  when  the  material  part  of  a  guaranty  was:  "For  any  goods 
he  hath  or  may  supply  "W.  P.  with,  to  the  amount  of  lOOZ."^  A 
guaranty  to  be  "accountable  that  B  will  pay  you  for  glass,  paints, 
etc.,  which  he  may  require  in  his  business,  to  the  extent  of  fifty 
dollars,"  is  a  continuing  guaranty,  and  not  exhausted  by  the  first 
fifty  dollars  of  credit  given  to  B.  "  Had  the  guarantor  desired 
or  intended  to  limit  his  responsibility  to  a  single  transaction,  or 
to  several  transactions  not  exceeding  that  sum  in  all,  it  was  easy 
to  have  said  it  in  plain  and  unmistakable  terms;  that  if  he  has 
failed  to  do  so,  and  by  equivocal  language  induced  the  guarantee 
to  part  with  the  goods,  he  should  be  held  to  abide  the  conse- 
quences."'^ The  same  thing  was  held  where  the  guaranty  was: 
"  I  will  be  responsible  for  what  stock     *     (A)  has  had,  or  may 

'  Whelan  v.   Keegan,  7   Irish  Com.  ^  Crist  v.  Burlinganie,  62  Barb.  (N. 

Law  R.  544.  Y.)  351. 

2  Bent  V.  Hartshorn,  1  Met.  (Mass.)  ■*  Mason  v.  Pritdmrd,  12  East,  227, 

24,  per  Shaw,  C.  J.  ^  Rindge  v.  Judson,  24  New  York, 

G4,  per  James,  J. 


188  LIABILITY    OF    GUARANTOR. 

want  hereafter,  to  the  amount  of  five  liundred  dollars." '  An 
obli"-ation  was  as  follows:  "In  consideration  of  the  Union  Bank 
ao-reeinc  to  advance  and  advancinc;  to  H.  &  Co.  any  sum  or  sums 
of  money  they  raaj'-  require  during  the  next  eighteen  months,  not 
exceeding  in  the  whole  1,000?.,  we  hereby  jointly  and  severally 
guaranty  the  payment  of  any  such  sum  as  may  be  owing  to  the 
bank  at  the  expiration  of  said  period  of  eighteen  months."  Held, 
under  tlie  circumstances  (which  should  be  considered)  this  was  a 
continuing  guaranty.  The  words,  "  not  exceeding  in  the  whole 
1,000?.,"  *  were  intended  to  express  the  limit  of  the  defend- 
ants' liability,  and  not  to  prohibit  the  bank  from  making  any  fur- 
ther advances  to  R.  &  Co." ' 

§134.  "When  gaaranty  exhausted  and  when,  not  exhausted  by 
the  advance  of  the  amount  mentioned  therein. — A  guaranty  not 
under  seal  of  "  the  sum  of  $500,  to  be  drawn  out  in  merchan- 
dise by  W  from  time  to  time  as  he  may  want ;  this  guaranty  to 
remain  good  until  further  order,  or  until  April  1st,  1857,"  is  con- 
tinuing, and  renders  the  guarantor  liable  to  the  extent  of  $500 
for  goods  sold  within  the  prescribed  period,  even  though  more 
than  that  amount  of  goods  have  been  sold  on  the  credit  of  the 
guaranty  and  paid  for  by  the  principal  within  that  time.^  The 
same  thing  was  held  where  the  guaranty  was  as  follows:  "  In  con- 
sideration of  your  supplying  my  nephew,  V,  with  china  and  earth- 
enware, I  guarantee  the  payment  of  any  bills  you  may  draw  on 
hira,  on  account  thereof,  to  the  amount  of  200?."*  An  obligation 
was  as  follows:  "Our  friend  *  (A)  to  assist  him  in  business, 
may  require  your  aid  from  time  to  time,  either  by  acceptance  or 
indorsement  of  his  paper  or  advances  in  casli;  in  order  to  save 
you  from  harm  by  so  doing,  we  do  hereby  bind  ourselves,  sever- 
ally and  jointly,  to  be  responsible  to  you  at  any  time  for  a  sum 
not  exceeding  eight  thousand  dollars,  should  the  said  *  (A) 
fail  to  do  so."  Held,  a  continuing  guaranty  and  not  exhausted 
by  the  first  sale  of  $8,000  worth  of  goods.'  The  following  has 
been  held  to  be  a  continuing  guaranty,  and  not  exhausted  by  the 
first  sales  under  it:  "Gentlemen,  my  brother  Hoswell  is  wishing 
to  go  into  business  in  New  York,  by  retailing  goods  in  a  small 
way.     Should  you  be  disposed  to  furnish  liim  with  such  goods  as 

'  Gates  V.  McKee,  13  New  York,  232.  » Hatch  v.  Hobbs,  12  Gray,  447. 

*  Lawi-ie  v.  Schol^field,  Law  Eep.  4  *  Mayer  v.  Isaac,  6  Mees  v.  Wtls,  605. 
Com.  PI.  622,  per  Smith,  J.  « Douglass  v.  Reynolds,  7  Peters,  113. 


GUARANTIES   NOT   CONTINUING.  189 

he  may  call  for,  from  300  to  500  dollars'  worth,  I  will  hold  my- 
self accountable  for  the  payment,  should  he  not  pay,  as  you  and 
he  shall  agree."  ^  M  wrote  to  L,  thus:  "  Mr.  B  informs  me  that 
in  conversation  with  Mr.  S,  of  your  firm,  he  stated  to  B,  '  if  he 
would  get  me  to  be  responsible  for  him  to  you,  or  in  other  words, 
to  give  B  a  letter  of  credit  to  you,  he  would  sell  him  on  longer 
time,  say  nine  months  or  a  year.'  This  is  therefore  to  inform 
you  that  I  will  be  responsible  for  B  to  the  amount  of  one  thou- 
sand dollars."  Held,  to  be  a  continuing  guaranty  until  goods 
to  the  amount  of  one  thousand  dollars  were  purchased,  but  no 
longer.^  Where  a  guaranty  was  "  Mr.  Lyman  Wilson  wishes  to 
buy  stock  for  his  shop  and  pay  in  six  months  or  before,  we  will 
be  surety  for  him  for  a  sum  not  to  exceed  one  hundred  dollars," 
it  was  held,  that  the  plaintiffs  were  authorized  to  deliver  stock  to 
Wilson  to  the  amount  of  one  hundred  dollars  on  the  credit  of  the 
guaranty,  and  that  it  need  not  all  be  sold  at  once,  but  might  be 
sold  and  delivered  from  time  to  time,  within  a  reasonable  period.' 
§  135.  What  not  continuing  guaranty — Instances. — Twent}''- 
seven  persons  signed  a  guaranty,  by  which  they  agreed  to  be 
each  bound  for  one  hundred  dollars  for  the  purchasers  "  for  any 
goods"  they  might  buy  of  the  sellers,  the  goods  to  be  paid  for  at 
such  time  as  might  be  agreed  upon  between  the  purchasers  and 
sellers,  "  and  each  of  us  to  be  bound  for  one  hundred  dollars,  and 
no  more."  Held,  this  was  not  a  continuing  guaranty,  and  only 
bound  the  guarantors  for  goods  sold  at  any  time  or  times,  which 
in  the  whole  amounted  to  twenty-seven  hundred  dollars.*  Where 
aguaranty  was:  "I,  *  agree  to  become  surety  to  *  (A)  for  any 
bills  contracted  by  *  (B)  from  this  date,  said  bills  in  the  aggre- 
gate not  to  exceed  $300,"  it  was  held  not  to  be  continuing,  and 
that  it  was  exhausted  by  the  sale  of  the  first  $300  worth  of  goods.* 
A  bond  recited  that  Colburn  (principal),  having  occasion  for  di- 

'Rapelye  v.  Bailey,  5  Ct.  149.  gess  v.  Eve.  Law  Rep.  13  Eq.  450; 

^Lawton  v.  Maner,    10  Rich.   Law  Simpsons.  Mauley,  2  Cro.  &  Jer.  12; 

(So.  Car.)  323.  Bastow  v.   Bennett",    3    Camp.   220  ; 

3  Keith  V.  Dwinnell,  38  Vt.  286.    For  Merle  v.  Wells,  2  Camp.  413;  Tanner 

other  examples  of  continuing  guaran-  v.  Moore,  9  Queen's   B.    1 ;  Hoad  v. 

tys,  see  Hitchcock  v.  Humfrey,  5  Man.  Grace,  7  Hurl.  &  Nor.  494;  Woolley  v. 

&  Gr.   559;  Id.  6  Scott,  N.   R.  540;  Jennings,  5  Barn.  &  Cres.  165. 

Farmers  &  Mechanics  Bank  v.  Kerch-  *  Wilde  v.  Haycraft,  2  Duvall  (Ky.) 

ival,  2  Mich.  504;  Heffield  v.  Meadows,  309. 

Law  Rep.  4  Com.   PI.   595;  Coles  v.  *Bussier  v.  Chew,   5   Phila.   (Pa.) 

Pack.  Law  Rep.  5  Com.  PI.  65;  Bur-  70. 


100  LIABILITY    OF    GUAKAKTOR. 

vers  snnis  of  money,  not  exceeding  in  the  whole  the  sum  of 
3,000/.,  liad  applied  to  the  plaintiffs  to  advance  the  same  at  such 
times  and  in  such  parts  and  proportions  as  he  might  require. 
Held,  tliis  was  not  a  continuing  guaranty,  but  was  exhausted  by 
the  first  advances  to  the  extent  of  3,000Z.'  The  following  guar- 
anty was  held  to  be  not  continuing,  and  to  cover  only  one  trans- 
action: "I  guaranty  the  sum  of  five  hundred  dollars  value  in 
glass  shades,  purchased  by  my  son  A  from  B.  Terms  of  pur- 
chase to  be  sixty  days  from  date  of  invoice,  and  if  not  paid  witli- 
in  ninety  days,  draft  to  be  dra-wn  on  me  for  the  amount."^  The 
following  obligation  was  held  not  to  be  a  continuing  guaranty: 
"I  hereby  agree  to  be  answerable  for  the  payment  of  501.  for  T. 
Lerigo,  in  case  T.  Lerigo  does  not  pay  for  the  gin,  etc.,  which  he 
receives  from  you,  and  I  will  pay  the  amount."  ^  When  a  guar- 
anty was :  "  I  hereby  agree  to  guaranty  to  you  the  payment  of 
such  an  amount  of  goods,  at  a  credit  of  one  year,  interest  after 
six  months,  not  exceeding  $500,  as  you  may  credit  to  *  i-^)"  it 
was  held  to  be  not  continuing.  The  Court  said:  " "Wliere  by  the 
terms  of  the  guaranty  it  is  evident  the  object  is  to  give  a  stand- 
ing credit  to  the  principal,  to  be  used  from  time  to  time,  either 
indefinitely  or  until  a  certain  period,  there  the  liability  is  con- 
tinuing; but  where  no  time  is  fixed,  and  nothing  in  the  instru- 
ment indicates  a  continuance  of  the  undertaking,  the  presump- 
tion is  in  favor  of  a  limited  liability  as  to  time,  whether  the 
amount  is  limited  or  not."'*  A  guaranty  was  as  follows:  "I 
liereby  agi-ec  to  be  answerable  to  K  for  the  amount  of  five  sacks 
of  flour,  to  be  delivered  to  T,  payable  in  one  month."  Five  sacks 
of  flour  were  delivered  to  T,  and  a  few  days  after  five  more  were 
delivered.  Shortly  afterwards  three  and  a  half  of  the  first  five 
were  returned.  Held,  the  guarantor  was  only  liable  for  one  and 
a  half  sacks,  as  the  guaranty  was  exhausted  by  the  delivery  of  the 
first  five  sacks. ^ 

§  136.  "What  not  continuing  guaranty — Instances. — A  por- 
tion of  a  letter  was  as  follows:  "  The  object  of  the  present  let- 
ter is  to  request  you,  if  convenient,  to  furnish  them  (principals) 
with  any  sum  they  may  want,  so  far  as  fifty  thousand  dollars,  say 

^  KirV)y  r.  The  Duke  of  Marlborough,  ^  Nicholson  v.   Paget,   1  Cromp.  & 

2  Maule  &  Sel.  18.  Mees,  4S  Id.  3  Tyrwh.  164. 

'•^  Boston  &   Sandwich  Glass  Co.  v.  ■»  Fellows  v.  Prentiss,  3  Denio,  512, 

Moore,  119  Mass.  435.  per  Hand,  Senator. 

>Kay  f.  Groves,  6  Bing.  276;  Id.  3  Moore  &  Payne,  634. 


'  GUARANTIES   NOT    CONTINUING.  191 

fifty  thousand  dollars.  They  will  reimburse  you  the  amount,  to- 
gether with  interest,  as  soon  as  arrangements  can  be  made  to  do 
it,  and  as  our  embargo  cannot  be  continued  much  longer,  we  ap- 
prehend there  will  be  no  difficulty  in  this.  We  shall  hold  our- 
selves answerable  to  you  for  the  amount."  Held,  this  was  not  a 
continuing  guaranty,  but  was  exhausted  by  the  advance  of  fifty 
thousand  dollars.'  The  following  was  held  not  to  be  a  continu- 
ing guaranty:  "  Sir,  for  any  sum  that  my  son,  George  Reed,  may 
become  indebted  to  you,  not  exceeding  $200,  I  will  hold  myself 
accountable."  '  A  sealed  promise  to  pay,  "  whatever  sum  may  be 
due  for  all  articles  of  book  account  furnished  to  J  at  his  request, 
and  for  his  use  and  for  which  he  is  now  indebted,  and  for  all 
other  articles  of  book  account  furnished  on  this  day  or  at  any  future 
day,  provided  said  articles  of  book  account  do  not  exceed  the 
sum  of  two  hundred  and  fifty  dollars,"  applies  only  to  the  exist- 
ing debt,  and  articles  furnished  in  addition  to  make  up  the  sum 
of  $250,  and  when  these  are  paid,  does  not  continue  to  secure  any 
future  balance  of  account.'  The  material  portion  of  a  writing 
was:  "We  here  offer  ourselves  in  security  to  any  gentleman 
who  may  feel  disposed  to  give  him  (purcjiaser)  credit,  not  exceed- 
ing seven  hundred  dollars,  to  be  bound  and  held  firmly  by  this 
writing  to  pay  the  said  sum  of  seven  hundred  dollars,  or  any  less 
sum."  Held,  this  was  not  a  continuing  guaranty,  and  only  au- 
thorized the  giving  of  credit  one  time.*  R,  doing  business  as  a 
retail  dealer  in  furniture,  obtained  from  C,  a  Avriting  addressed 
to  the  plaintiff,  who  was  a  wholesale  furniture  dealer,  as  follows: 
"  There  is  a  fair  prospect  that  H  could  sell  a  few  chamber  suits  if 
he  had  them.  If  you  let  him  have  them,  we  will  see  that  you 
receive  pay  for  them  as  sold  or  soon  thereafter."  Held,  the  guar- 
anty contemplated  but  a  single  sale  of  chamber  suits  only,  ac- 
companied or  speedily  followed  by  delivery."  A  guaranty  was  in 
the  following  words:  "Whereas,  Joel  Hall  has  agreed  to  indorse 
Samuel  Cooper's  notes  at  the  Middletown  Bank  to  the  amount  of 
4,000  dollars,  I  hereby  agree  to  be  responsible  to  said  Hall  for 
one-half  the  amount  of  any  loss  he  may  sustain  by  said  indorse- 
ment; and  I  agree  to  pay  the  one-half  of  any  payments  which 

'  Cremer   v.   Hig-ginson,    1    Mason,  ^Aldricks  v.   Higgins,    16  Serg.  & 

323.  Rawle,  212. 

«  White  V.  Reed,  15  Ct.  457.  ^  Hayden  v.  Crane,  1  Lansing   (N. 

sCongdon  v.  Read,  7  Rhode  Is.  406.  Y.)  181. 


193  LIABILITY    OF    GUARANTOR. 

said  Hall  may  be  obliged  to  pay  in  the  same  manner  and  at  the 
same  time,  whicli  I  should  be  obliged  to  pay  it  provided  I  was 
joint  iudorser  with  him  on  said  notes."  Held,  not  a  continuing 
o-uaranty,  and  that  the  party  signing  it,  was  only  liable  to  con- 
tribute as  to  the  first  $4,000  of  notes  indorsed  by  Hall'  This 
guaranty  was  held  not  continuing:  ''  Sir:  *  (A)  wishing  to  alter 
his  present  mode  of  doing  business  and  make  arrangements  in 
Charleston,  has  requested  me  to  continue  my  assistance  by  lend- 
in  f  him  my  name.  I  have  therefore  consented  that  he  shall  use 
it  for  the  amount  of  from  $1,000  to  $1,500.  He  will  in  future 
carry  on  business  on  his  own  account,  and  make  his  own  remit- 
tances." ' 

§  137.  What  not  continuing  guaranty — Instances. — The  fact 
that  a  guaranty  did  not  limit  the  amount  for  which  the  guaran- 
tor might  become  liable,  has  sometimes  had  a  controling  influ- 
ence, and  induced,  the  court  to  hold  it  to  be  not  continuing.  Thus, 
a  guaranty  was:  "  If  you  will  let  the  bearer  have  what  leather  he 
wants,  and  charge  the  same  to  himself,  I  will  see  that  you  have 
your  pay  in  a  reasonable  length  of  time."  Held,  it  was  confined 
to  a  single  transaction.  The  court  said:  "  We  think  it  is  limited 
to  a  single  purchase  or  transaction.  We  must  hold  this  or  that  it  is 
unlimited,  both  as  to  time  and  amount.  Every  person  is  sup- 
posed to  have  some  regard  to  his  own  interest,  and  it  is  not  rea- 
'  sonable  to  presume  any  man  of  ordinary  prudence  would  become 
surety  for  another  without  limitation  as  to  time  or  amount,  unless 
he  has  done  so  in  express  terms,  or  by  clear  implication."  ^  Tlie 
same  thing  was  held  where  the  guaranty  was  as  follows:  "We 
consider  J.  Y.  E.  good  for  all  he  may  want  of  you,  and  will  indem- 
nify the  same."  The  court  said:  "  Ordinarily,  the  instruments 
that  have  been  held  to  be  continuing  guaranties,  limited  the 
amount  of  the  credit,  whicli  greatly  diminished  the  responsibil- 
ity." *  "  Please  let  the  bearer  *  (A)  buy  merchandise  to  the 
amount  of  two  or  three  hundred  dollars,  on  six  months,  and  I  will 
see  that  you  have  your  pay,"  is  not  a  continuing  guaranty.^  An 
instrument  was  as  follows:  "P  *  having  informed  me  that  he 
is  making  some  purchases  from  you,  and  not  being  acquainted 

^Hall  V.  Rand,  8  Ct.  560.  ■*  Whitney  r.  Groot,   24  Wend.  82, 

*  Sollee  V.  Meugy,  1  Bailey  Law  (So.      per  Nelson,  C.  J. 
Car.)  620.  b  Reed  v.  Fish,  59  Me.  358. 

*Gard  V.  Stevens,  12  Mich.  292,  per 
Manning,  J. 


GUAEANTIES   NOT    CONTINUING.  193 

witli  you,  that  you  wish  some  reference.  Though  not  personally 
acquainted,  yet  I  would  say  from  my  knowledge  of  P  *  that 
3^ou  might  credit  him  with  perfect  safety,  and  that  anything  he 
might  purchase  from  you  I  would  see  paid  for."  Held,  not  a  con- 
tinuing guaranty,  and  that  it  was  limited  to  the  purchases  then 
being  made.'  The  defendants  addressed  to  the  plaintiffs  the  fol- 
lowing letter:  "Whatever  goods  you  sell  to  A  B  to  be  sold  in 
our  store,  we  will  consent  that  he  may  take  the  money  out  of  our 
concern  to  pay  for  the  same,  etc.  The  said  A  B  shall  have  the 
liberty  of  taking  the  pay  out  of  our  concern  as  fast  as  the  goods 
are  sold."  Held,  if  this  was  a  guaranty,  it  was  not  a  contiuuino- 
one.  The  court  said:  "  If  the  plain  terms  of  the  contract  may  be 
fulfilled  by  being  confined  to  one  transaction,  courts  are  not  anx- 
ious to  extend  it  to  others."'^  A  guaranty  was  as  follows:  "I 
engage  to  guaranty  the  payment  of  Mr.  Amos  Molden  to  the 
extent  of  601.,  at  quarterly  account  bill  two  months  for  goods,  to 
be  purchased  by  him  of  William  and  David  Melville."  Held,  the 
guaranty  only  covered  advances  made  during  one  quarter.' 

'  Anderson  v.  Blakely,  2  Watts.  &  guaranty  has  been  held  not  to  be  con- 

Serg.  (Pa.)  237.  tinning,  see  Tayleur  v.  Wildin,  Law 

2  Baker  v.  Rand,  13  Barb.  (N.  T.)  Rep.3  Exch.803;  AUnuttr.  Ashenden, 

152,  per  Hand,  J.  5  Man.  &  Gr.  392;  Bovill  v.  Turner,  2 

2 Melville  V.  Hayden,  8  Bam.  &  Aid.  Chitty,  205;  Kirby  v.   The    Duke  of 

593.    For  other  cases,  in  which  the  Marlborough,  2  Maule  &  Sel.  18. 


13 


CHAPTER  VI. 


OF   CASES   WHERE   THE   SURETY    ON    A     GENERAL    OBLIGA- 
TION  IS  LIABLE   ONLY    FOR  LIMITED   TIME  OR  ACT. 


Section. 

When  liability  of  surety  on  a  gen- 
eral bond  limited  by  the  recitals 
thereof  ....  138 

Surety  on  general  bond  of  annual 
officer  only  liable  for  one  year 
139,140 

Wlien  surety  on  general  bond  only 
liable  for  one  year        .        .        141 

When  liability  of  a  surety  on  gen- 
eral bond  limited  by  circum- 
stances.   Instances        .        .       142 


Section- 
When  general  obligation  of  surety 

limited  by  special  circumstances  .  143 
When  sureties  on  bond  of  annual 

officer  bound  for  more  than  a 


144 


When  general  words  of  obligation 
not  limited  by  other  words  or 
circumstances        .        .        .        145 

When  general  words  of  obligation 
not  limited  by  other  words  or 
circumstances        .        .        .       146 


§  138.  "When  liability  of  surety  on  general  bond  limited  by 
the  recitals  thereof. — "When  the  words  of  the  condition  of  a  bond 
are-  general  and  indefinite  as  to  the  time  dnring  which  the  surety 
shall  remain  liable,  if  there  is  a  recital  in  the  bond,  specifying 
the  time  dnring  which  the  prescribed  duty  is  to  be  performed  by 
the  principal,  the  general  words  will  be  limited  by  the  recital, 
and  the  surety  will  only  be  liable  for  the  time  therein  specified. 
The  reason  is  that,  taking  the  whole  instrument  together,  it  is 
but  fair  to  presume  that  the  parties  had  in  contemplation  only  a 
liability  for  the  time  specified.  It  is  a  rule  of  construction, 
adopted  for  the  purpose  of  efiectuating  the  intention  of  the  par- 
ties. In  the  leading  case  on  this  subject,  a  bond  recited  that 
Thomas  Jenkins  had  been  appointed  deputy  postmaster,  "to  exe- 
cute the  said  ofiice  from  the  twenty-fourth  day  of  June  next  com- 
ing, for  the  term  of  six  months,"  and  was  conditioned  for  his 
good  behavior  "dnring  all  the  time  that  he,  the  said  Thomas 
Jenkins,  shall  continue  dejDuty  postmaster."  Jenkins  held  the 
the  office  more  than  two  years,  and  the  surety  was  sued  for  a  de- 
fault of  his  happening  two  years  after  his  appointment.  Held, 
the  surety  was  not  liable  for  anything  happening  after  the  first 
six  months.     The  general  words  of  the  bond  were  restrained  by 

(194) 


SURETY   ON    GENERAL   BOND    OF   ANNUAL   OEFICEE.  195 

tlie  special  ones.  "  This  time,  wliich  is  indefinite  in  itself,  onght 
to  be  construed  only  for  the  said  six  months  for  which  the  con- 
dition recites  that  Jenkins  was  appointed  to  be  deputy  postmas- 
ter, and  to  which  the  condition  relates."  *  The  condition  of  a 
bond,  reciting  that  the  defendant  had  agreed  with  the  plaintiffs 
to  collect  their  revenues  "  from  time  to  time  for  twelve  months," 
and  afterwards  stipulating  that,  "  at  all  times  thereafter,  during 
the  continuance  of  his  employment,  and  for  so  long  as  he  should 
continue  to  be  employed,"  he  should  justly  account  and  obey  or- 
ders, etc.,  confines  the  obligation  to  the  period  of  twelve  months 
mentioned  in  the  recital.^  In  construing  an  agreement  in  the 
form  of  a  bond,  in  which  a  surety  became  liable  for  the  due  ful- 
fillment of  an  agent's  duties,  therein  particularly  enumerated,  a 
general  clause  in  the  obligatory  part  of  the  bond  must  be  inter- 
preted strictly,  and  controlled  by  reference  to  the  prior  clauses 
specifying  the  extent  of  the  agency.  Held,  accordingly,  that 
money  received  by  an  agent  on  account  of  his  employers,  during 
tlie  time  of  his  agency,  but  not  in  pursuance  of  the  particular 
agency,  disclosed  to  the  surety  by  the  specified  conditions  in  the 
bond,  were  not  covered  by  the  surety's  obligation,  "  that  during 
the  whole  time  the  said  '^'  (agent)  shall  continue  to  act  as  agent 
aforesaid,  in  consequence  of  the  above  recited  agreement,  he  shall 
well  and  truly  account  for  and  pay  to  us  (the  employers)  all 
sums  of  money  received  by  him  on  our  account."  ' 

§  139.  Surety  on  general  bond  of  annual  officer  only  liable 
for  one  year. — Sureties  on  the  general  bond  of  an  annual  ofiicer, 
are  generally  held  to  be  liable  only  for  one  year.  The  sureties 
are  presumed  to  have  contracted  with  reference  to  the  law,  and 
the  o-eneral  words  of  the  obliiration  are  restrained  and  limited 
thereby.  Thus,  the  office  of  sheriff  being  annual,  and  he  being 
appointed  and  commissioned  for  one  year,  gave  bond  with  surety 
conditioned  for  his  good  behavior  "  during  his  continuance  in 
office."  He  acted  a  second  year  without  a  new  nomination  or 
commission,  and  without  having  renewed  his  bond:  Held,  the 
sureties  were  not  liable  for  taxes  collected  by  the  sheriff'  the  sec- 
ond year.  The  court  said:  "The  expression  in  the  bond,  '  during 
the  continuance  in  office,'  must  clearly  have  reference  to  the  ac- 

'  Lord  Arlington  p.  Merricke,  2  Liverpool  Waterworks  v.  Atkinson,  6 
Saunders,  403,  per  Hale,  C.  J.  East.  507. 

^  Company  of    Proprietors    of   the         ^  Napier  v.  Bruce,  8  Clark  &  Finnel- 

ly,  470. 


196  LIABILITY   OF   SUKETT. 

tual  duration  of  the  office  by  virtue  of  the  appointment  under 
which  the  bond  was  taken."  ^  A  bond  made  by  the  defendant's 
testator  as  surety  for  E,  recited  that  E  had  been  and  still  was 
collector  of  the  land  tax,  etc.,  of  a  parish,  and  was  conditioned  for 
the  due  payment  by  him  from  time  to  time,  and  at  all  times 
thereafter,  of  all  money  which  he  should  from  time  to  time  col- 
lect from  the  inhabitants  of  the  parish  on  account  of  any  tax  then 
imposed,  or  which  might  thereafter  be  imposed.  The  office  of 
collector  was  annual:  Held,  the  surety  was  only  liable  for  one 
year.  The  court  said,  that  in  order  to  make  him  liable  for  a 
longer  time,  the  words  of  the  bond  must  be  clear  and  unmistak- 
able. If  he  could  be  held  for  more  than  one  year,  he  could,  with 
equal  propriety,  be  held  for  Hfty  years,  or  any  length  of  time  in 
the  future.'^  Where,  according  to  the  by-laws  of  an  insurance 
company  the  office  of  secretary  was  annual,  and  a  secretary  was 
appointed  for  a  year,  and  gave  bond  conditioned  for  his  good  be- 
havior "  during  his  continuance  in  office  by  virtue  of  his  appoint- 
ment," and  at  the  end  of  the  first  year,  and  for  several  years  there- 
after, he  was  re-elected  without  any  new  bond  being  required  or 
given,  it  was  held  the  sureties  were  only  liable  for  the  first  year. 
If  it  were  otherwise,  there  would  be  no  limit  to  their  liability, 
and  no  means  by  which  they  could  terminate  it.^  A  constable 
entered  into  a  general  bond  for  the  performance  of  his  duties  as 
such,  "agreeably  to  his  appointment,  and  in  conformity  with  the 
existing  laws  of  the  state."  The  office  of  constable  was  by  law 
limited  to  a  year,  but  there  was  a  provision  that  all  officers  should 
hold  until  their  successors  were  elected :  Held,  the  sureties  were 
not  liable  for  any  defalcation  of  the  constable  happening  more 
than  a  year  after  his  appointment,  although  no  successor  had  been 
appointed,  and  he  still  held  the  office.  The  court  said:  "  If  a 
person  is  surety  for  the  fidelity  of  another  in  an  office  of  limited 
duration,  or  the  appointment  to  which  is  only  for  a  limited  period, 
he  is  not  obliged  beyond  that  period.  *  The  condition  here 
is  for  the  faithful  performance  of  the  duties  of  high  constable, 
agreeably  to  his  a23pointment,  and  in  conformity  with  existing 
laws.  .  '^     The    commission,  and  the  law  under  which    it  was 

'  Commonwealth  v.  Fairfax,  4  Hen.  33  ,Barb.  (N.  Y.)  196.    To  the   same 

&  Munf.  (Va.)  208,  per  Roane,  J.  effect,   see  Welch  v.  Seymour,    28  Ct. 

'Hassell  r.  Long,  2  Maule  &  Sel.  387;  South   Carolina  Society  ».  John- 

363,  per  Ld.  Ellenborough,  C.  J.  son,  1  McCord  Law  (So.  Car.)  41. 

*  Kingston  Mut.  Ins.  Co.  v.  Clark, 


SURETY    ON    GEMEEAL    BOND    OF    ANNUAL    OFFICEE.  197 

made,  necessarily  enter  into  the  obligation  in  construing  its  ex- 
tent, and  must  be  considered  bj  the  court."  * 

§  140.  Surety  on  general  bond  of  annual  ofScer  only  liable 
for  a  year. — The  sureties  on  the  bond  of  the  treasurer  of  a  man- 
ufacturing corporation,  who  bj  statute  is  to  be  chosen  annually, 
"  and  hold  his  office  until  another  is  chosen  and  qualified  in  his 
stead,"  where  the  bond  is  general  for  his  good  behavior  and  not 
restricted  as  to  time,  are  bound  only  for  the  year  for  which  he 
was  chosen,  and  for  such  further  time  as  is  reasonably  sufficient 
for  the  election  and  qualification  of  his  successor,  although  the 
corporation  fail  to  elect  a  successor  at  the  next  annual  meeting. 
The  court  said  that  where  the  office  is  annual,  the  general  words 
of  the  bond  are  restrained  by  that  fact.  The  liability  of  the 
sureties  is  not  limited  to  a  year  exactly,  but  may  extend  a  few 
days  longer,  till  the  usual  time  for  holding  the  meetings  of  the 
officers  of  the  corporation.  The  words  "  hold  his  office  till  another 
is  chosen,"  may  be  applied  to  this  fact,  and  should  not  change 
the  general  rule.^  A  collector  of  church  and  poor  rates  gave 
bond  with  suretj^,  conditioned  that  he  would  account  to  the 
church  wardens  "  and  their  successors  "  for  all  money  received 
by  him.  The  office  of  the  wardens  was  annual,  and  as  a  conse- 
quence that  of  the  collector  was  annual  also.  Held,  the  sureties 
were  only  liable  for  the  collector's  acts  during  one  year.  The 
court  said  the  words  "  and  their  successors  "  meant  that  he  must 
account  to  the  successors  for  acts  done  by  him  during  the  first 
year,  to  the  successor  of  one  if  he  died  during  the  year,  or  to 
the  successors  of  all  at  the  end  of  the  year,^  Certain  sureties 
became  bound  for  the  acts  of  a  collector  of  church  rate,  the  of- 
fice being  an  annual  one.  The  bond  was  conditioned  for  the  col- 
lector accounting  "  unto  the  wardens  of  the  grand  account  for  the 
time  being  or  hereafter  to  be,  of  all  such  sum  and  sums  of  money 
so  by  him  collected  and  received."  Held,  the  sureties  were  not 
liable  after  the  first  year.  The  court  remarked  :  "  Can  we  say 
that  they  intended  to  be  bound  for  an  indefinite  period?"^  The 
office  of  county  treasurer  being  annual,  a  treasurer  was  elected 
in  1790,  and  gave  bond  with  surety,  conditioned  that  he  should 

'Mayor,     etc.,    of  Wilmington    r.  ^Leadley  v.  Evans,  9  Moore,    102, 

Horn,  2  Har.  (Del.)  190,  per  Harring-  per  Best,  J. 

ton,  J.  ^The  Wardens  of  St.  Saviors  South- 

^  Chelmsford    Co.    v.    Demarest,    7  wark  v.  Bostock,  5  Bos.  &  Pul.  175, 

Gray,  1  per  Shaw,  C.  J.  per  Mansfield,  C.  J. 


198  LIABILITY   OF   SURETY. 

"  fiiitlifuUy  discliaro;e  the  duties  of  the  office  of  treasurer  of  said 
county,  and  account  for  all  sums  of  money  which  he  * 
(s«hould)  receive  for  the  use  of  the  said  county."  He  was  elected 
annually  till  180G,  but  gave  no  new  bond.  Held,  no  recovery 
could  be  had  on  the  bond  for  anything  transpiring  after  the  first 
vear.^  The  office  of  tax  collector  being  by  act  of  Parliament  an 
annual  one,  a  collector  gave  a  bond  with  surety,  which  recited 
his  appointment  under  the  act,  and  was  conditioned  for  the  due 
collection  by  him  of  the  rates  and  duties  at  all  times  thereafter. 
Held,  the  due  collection  of  taxes  for  one  year  was  a  compliance 
with  the  bond.  With  reference  to  the  general  words  of  the  bond, 
the  court  said  :  "  These  words  must  be  construed  w^ith  reference 
to  the  recital  and  to  the  nature  of  the  appointment  there  men- 
tioned." ^ 

§  141.  "When  surety  on  general  bond  only  liable  for  one  year. — 
The  condition  of  a  bond  was  that  the  principal  should  "  from 
time  to  time,  and  at  all  times,  so  long  as  he  *  (should)  continue  to 
hold  said  office  or  employment,"  faithfully  demean  himself  as 
clerk.  To  a  suit  on  this  bond  against  the  surety,  he  j)lead  that 
the  employment  of  the  clerk  was  only  for  one  year,  and  that  no 
default  had  happened  within  the  year.  Replication  that  by  con- 
sent of  all  parties  the  clerk  was  retained  longer  than  a  year. 
Held,  the  replication  was  bad.^  A  bond  from  the  deputy  to  the 
high  sheriff,  conditioned  for  the  faithful  performance  of  his  duty 
as  deputy,  "  during  his  continuance  in  office,"  without  specifying 
the  length  of  time,  is  binding  on  him  and  his  sureties  for  the 
transactions  of  one  year  only,  the  term  of  the  high  sheriff  being 
limited  to  that  time."  Debt  against  a  sheriff  and  his  sureties,  on 
a  bond  dated  March,  1820,  conditioned  for  the  faithful  discharge 
of  the  sheriff's  duties  until  the  next  August  election,  and  until 
his  successor  should  be  elected  and  qualified.  The  breach  as- 
signed, was  that  the  sheriff  had  failed  to  pay  over,  etc.,  the  reve- 
nue of  the  county  for  1822.  Held,  that  although  the  sheriff  may 
have  been  elected  his  own  successor,  and  may  have  neglected  to 
qualify  under  the  new  appointment,  still  the  sureties  were  not 
liable  for  his  acts  after  he  received  his  new  commission.''     The 

■     '  Bigelow  f.  Bridge,  8  Mass.  275;  to  ^Kiton  v.  Julian,  4  Ellis  &  Black, 

same  effect,   see  Riddel  v.  School  Dis-  854. 

ti-ict,  15  Kansas,  168.  ^Munford  v.  Rice,   6  Munf.   (Va.) 

''Peppin  v.  Cooper,  2  Barn.  &.  Aid.  81. 

431,  per  Abbott,  C  J.  «Rany  v.  The  Governor,  4  Blackf. 


CIRCUMSTANCES    LIMITING    LIABILITY   OF    SURETY.  199 

condition  of  a  bond  recited  tliat  S  had  been  appointed  (under  a 
statute  making  the  office  annual)  treasurer  of  a  borough,  and  it 
provided  that  he  should  duly  perform  the  office  according  to  the 
provisions  of  said  statutes,  and  of  "  such  statutes  as  should  be 
thereafter  passed  relating  to  said  office."  He  continued  to  hold 
the  office  for  several  years  under  successive  appointments,  and  did 
not  comply  with  certain  statutes  passed  subsequent  to  the  first 
year.  Held,  his  sureties  were  not  liable  for  such  default.  The 
words  "such  statutes  as  should  be  thereafter  passed,"  meant  such 
as  should  be  passed  during  the  first  year.'  Where  a  statute  pro- 
vided that  the  period  of  administration  on  estates  should  be  one 
year,  but  if  the  estate  was  not  settled  at  that  time,  the  judge 
might  extend  it  a  year,  and  so  on  for  five  years,  it  w^as  held  that 
the  sureties  on  a  general  bond  of  an  administrator,  given  when 
the  administration  commenced,  were  only  liable  for  one  year.'' 
The  office  of  register  in  chancery  being  annual,  a  party  was  ap- 
pointed to  it,  and  gave  bond  conditioned  for  his  good  behavior 
"  whilst  he  shall  continue  in  the  office,"  and  also  "  during  the 
time  he  hath  officiated  in  the  said  register's  office."  He  continued 
in  office  four  years.  Held,  the  sureties  were  not  liable  beyond  the 
first  year.  The  court  said:  "  The  provisions  of  the  constitution 
(making  the  office  annual)  form  the  basis  of  the  contract,  and 
like  the  recital  in  the  condition  of  the  bond,  restrain  the  indefi- 
nite expressions  used  in  it,  and  adapt  them  to  the  intention  of  the 
parties." ' 

§  142.  "When  liability  of  surety  on  general  bond  limited  by 
circumstances — Instances. — A  bond,  reciting  that  A  had  been 
appointed  assistant  overseer  of  a  parish,  was  conditioned  for  the 
due  performance  of  his  duties,  "  thenceforth  from  time  to  time, 
and  at  all  times,  so  long  as  he  should  continue  in  such  office." 
The  office  was  not  annual,  but  the  overseer  was  appointed  annually 
thereafter  for  several  years,  and  at  an  increased  salary.  Held,  the 
sureties  on  the  bond  were  not  liable  for  anything  happening 
after  his  re-appointment  at  an  increased  salary.  The  re-appoint- 
ment on  dificrent  terms,  was  a  revocation  of  the  first  appoint- 
ment.*    A  treasurer  was  appointed  by  the  governor,  and  gave 

(Ind.)  2;  to  similar  effect,  see  Moss  v.  ^ State  v.  Wayman,  2  Gill  &  Johns. 

The  State,  10  Mo.  338.  (Md.)  254. 

^  Mayor  of  Cambridge  v.  Dennis,  Ell.  ^  Bamford  v.  lies,  3  Wels.  Hurl.  & 

Black.  &  Ell.  660.  Gor.  380. 

^Flores  v.  Howth,  5  Texas,  329. 


200  LIABILITY    OF   SUKETY. 

bond  Vv'ith  surctj,  conditioned  for  his  good  beliavior  "  as  such 
treasurer,''  the  term  of  office  of  a  treasurer  then  being  during  the 
pleasure  of  the  governor.  Afterwards  a  statute  was  passed  pro- 
viding that  the  treasurer  should  be  elected  by  the  people,  and  hold 
office  for  tliree  years.  The  same  party  was  elected  treasurer  and 
gave  a  new  bond.  Held,  the  fii-st  set  of  sureties  were  not  liable 
for  the  treasurer's  default  after  his  election.  They  may  have  been 
willing  to  be  bound  for  him,  if  he  held  office  during  the  pleasure 
of  the  governor,  but  not  if  the  holding  was  for  a  fixed  term.' 
Subsequent  to  the  passage  of  the  United  States  internal  revenue 
act  of  186-4,  the  assistant  treasurer  of  the  United  States,  and  treas- 
urer of  the  branch  mint  at  San  Francisco,  gave  a  bond  conditioned 
as  provided  by  the  act  of  1S4G.  The  bond  provided  that  he  should 
faithfully  discharge  the  duties  of  his  office,  and  all  "  other  duties 
as  fiscal  agents  of  the  government,  which  may  be  imposed  by  this 
or  any  other  act."  The  act  of  1864,  which  provided  that  stamps 
might  be  furnished  to  assistant  treasurers,  also  provided  that 
bond  for  the  payment  for  the  same  might  be  required  from  them. 
Said  assistant  treasurer  got  stamps  for  which  he  gave  no  new 
bond,  and  did  not  pay  for  them.  Held,  the  sureties  on  the  gen- 
eral bond  were  not  liable  for  the  stamj)S.  If  Congress  had  sup- 
posed the  general  bond  covered  the  case,  why  was  a  new  bond 
provided  for?  The  general  words  in  the  bond  should  not  cover 
the  case.  "We  think  these  words  only  intended  to  include  such 
duties  as  naturally  and  ordinarily  belong  to  the  particular  officer 
giving  the  bond,  or  hav^e  some  obvious  relation  to  such  duties,  and 
such  as  the  sureties,  acquainted  with  the  duties  of  the  various  pub- 
lic officers,  as  usually  devolved  upon  them  by  law,  might  reason- 
ably be  expected  to  contemplate  at  the  time  of  executing  the 
bond,  as  likely  to  be  imposed  upon  their  principal,  in  case  the  ex- 
igencies of  government  should  require  it,  and  not  those  duties 
which  are  more  usually  imposed  upon,  and  more  appropriately 
belong  to  an  entirely  different  class  of  officers."  ^  The  sureties  in 
a  bond  given  by  the  register  of  wills  for  the  performance  of  his 
duties  generally,  and  the  payment  of  all  money  received  for  the 
use  of  the  State,  are  not  responsible  for  collateral  inheritance  tax 
collected  by  him.     The  terms  of  his  bond  were  broad  enough  to 

'The  Queen  v.  Hall,  1  Up.  Can.  C.  curring;  see,  also,  on  this  subject,  to 

P.  R.  40G.  same  general  effect,  Holt  v.  McLean, 

^  United  States  v.  Cheespman,  3  Saw-  75  Nor.  Car.  347. 
yer,  424,  per  Sawyer,  J.,  Field,  J.,  con- 


CIECTJMSTANCES   LISnTING   GENERAL    OBLIGATION.  201 

cover  this  tax,  but  tlie  act  establishing  the  tax  provided  for  the 
giving  of  a  special  bond  therefor.  The  court  said:  "  It  seems  to 
us  verj  plain,  therefore,  that  the  general  bond  is  not  intended  to 
secure  either  payment  of  these  collections,  or  the  giving  of  the 
special  bond  to  secure  them."  ' 

§  143.  When  general  obligation  of  surety  limited  by  special 
circumstances. — A  bank  cashier  gave  a  bond  with  sureties  for  his 
good  behavior  in  office.  The  charter  of  the  bank  would  have  ex- 
pired in  1818,  but  before  that  time,  and  after  the  sureties  signed 
the  obligation,  the  charter  was  extended  by  act  of  the  legislature. 
'No  new  bond  was  given,  but  the  cashier  continued  to  act  during 
the  extended  period.  Held,  the  sureties  were  not  liable  for  any 
of  his  defalcations,  after  the  time  when  the  original  charter 
expired.*  M  required  machinery  for  a  cheese  factory,  and  gave  A 
an  order  for  it,  which  he  refused  to  fill  without  security.  B  there- 
upon wrote  to  A  as  follows :  "  I  recommend  M  to  you,  and  if  he 
should  fail  in  his  promise  to  you  for  anything  in  your  way,  I 
consider  myself  jointly  liable  for  the  amount  of  $200,  payable  in 
six  months  to  your  firm."  A  thereupon  filled  the  order.  Held, 
the  meaning  of  the  guaranty,  when  considered  with  reference  to 
the  surrounding  circumstances,  was  that  it  applied  to  the  sjjecifie 
order  M  had  given  for  machinery  and  to  no  otlier.^  A  and  B 
executed  a  note  for  $4,000,  payable  on  demand,  the  note  being 
joint  and  several,  and  both  appearing  as  principals,  but  B  w^as  in 
fact  the  surety  of  A,  and  that  was  known  by  a  bank,  to  the  cash- 
ier of  which  the  note  was  payable.  The  note  was  made  to  ena- 
ble A  to  raise  money  at  the  bank.  The  bank  advanced  A,  from 
time  to  time,  over  $32,000,  all  of  which  was  paid,  and  then  ad- 
vanced $2,000,  which  was  not  paid,  and  the  bank  thereupon  sued 
A  and  B  on  the  note.  Held,  B  was  not  liable.  The  note  was  no 
more  than  an  express  guaranty  for  $4,000,  and  was  exhausted  by 
the  first  advance  of.  that  amount.*  The  bond  of  the  treasurer  of 
a  manufacturing  corporation  provided  for  the  faithful  discharge 
of  his  duties  "during  the  time  for  which  he  had  been  elected,  and 
for  and  during  such  further  time  as  he  *  (might)  continue  therein 
by  any  re-election  or  otherwise."  He  was  re-elected  at  the  next 
annual  election,  and  served  five  months  of  that  term,  and  then  re- 

^  Commonwealth  f.  Toms,  45  Pa.  St.  ^  Boyle  v.  Bradley,  26  Up.  Can.  C. 

408.  P.  R.  373. 

**  Thompson  v.  Young,  2  Ohio,  335.  *AgawamBank  tJ.  Strever,  16  Barb. 

(N.  Y.)  82. 


202  LIABILITY   OF    SURETY. 

si2;nc(.l,  and  his  successor  was  appointed  and  held  seven  months; 
at  the  next  annual  election,  the  first  treasurer  was  elected  again, 
and  served,  and  committed  defaults.  Held,  the  sureties  were  not 
liable  for  such  defaults.  They  were  liable  for  more  than  one  year 
by  tlie  express  terms  of  the  bond,  but  were  only  liable  for  a  con- 
tinuous holding.  The  fact  that  for  awhile  the  principal  did  not 
h()ld  the  office,  ended  the  liability  of  the  sureties.  "  The  word 
'continue'  excludes  all  idea  of  intermission  in  the  office."^ 

§  144.  "When  sureties  on  bond  of  annual  officer  bound  for 
more  than  a  year. — While  sureties  on  the  general  bond  of  an 
annual  officer  are  usually  held  to  be  liable  only  for  one  year,  be- 
cause such  is  presumed  to  have  been  the  intention  of  the  parties, 
yet  there  is  nothing  to  prevent  such  sureties  from  becoming 
bound  for  a  longer  time,  and,  if  an  intention  to  that  effect 
clearly  and  unequivocally  appears,  they  will  be  so  held.  Thus, 
the  office  of  treasurer  of  a  borough  being  annual,  A  was  appointed 
thereto,  and  gave  bond  conditioned  for  the  due  accounting  for  all 
such  moneys  as  he  should  or  might  recover  or  receive  "  in  virtue 
of  *  said  appointment  as  treasurer,  as  aforesaid,  during  the 
whole  time  of  *  continuing  in  said  office,  in  consequence  ot 
the  said  election,  or  under  any  annual  or  other  future  election  of 
the  said  council  to  said  office."  Afterwards,  and  during  the  year,  the 
term  of  office  was  by  statute  changed  to  a  holding  during  the 
pleasure  of  the  council,  and  at  the  expiration  of  the  year  A  was 
again  appointed  treasurer,  and  continued  in  office  a  long  time. 
Held,  the  sureties  were  liable  for  defaults  of  A  happening  after 
the  first  year.^  By  statute,  the  commission  of  an  auctioneer  did 
n<)t  necessarily  expire  in  one  year,  but  might  continue  for  three 
years  without  renewal  of  his  bond.  M.  having  applied  for  ap- 
pointment as  auctioneer,  gave  bond  conditioned  that  he  should 
perform  all  the  duties  of  auctioneer,  etc.,  "  during  the  period  he 
*  (should)  continue  to  act  as  auctioneer  under  the  commission 
that  *  (might)  be  granted  to  him."  He  was  afterwards  com- 
missioned for  one  year.  Held,  the  liability  of  the  sureties  did 
not  expire  in  one  year,  but  continued  while  M  acted  as  auctioneer.' 
A  bond  given  to  secure  the  faithful  performance  of  his  duties 

'Middlesex  Manf.  Co.  v.  Lawrence,  331.    Holding  the  sureties  on  a  guar- 

1  Allen,  339  per  Dewey,  J.  dian's  second  bond,  given  upon   his 

'  Oswald  f.  Mayor  of    Berwick,    5  removal  to  a  new  county,  hable  for 

"  House  of  Lords,  Cas.  856.  a  defalcation  before  committed  by  him, 

»Daly  V.  Commonwealth,  75  Pa.  St.  see  State  v.  Stewart,  36  Miss.  652. 


SURETY  OF  ANNUAL  OFFICEK  BOUND  LONGER  THAN  A  TEAK.  203 

by  a  collector  of  parochial  rates  (who  was  bj  statute  to  be 
ajDpointed  by  trustees  for  a  year  and  then  to  be  capable  of  re-elec- 
tion), was  conditioned  that  "from  time  to  time,  and  at  all  times 
thereafter,  during  such  time  as  he  should  continue  in  his  said 
office,  whether  by  virtue  of  his  said  appointment,  or  of  any 
re-appointment  thereto,  or  of  any  such  retainer  or  employment 
by  or  under  the  authority  of  the  said  trustees,  or  their  successors, 
to  be  elected  in  the  manner  directed  by  the  said  act,  he  should 
use  his  best  endeavor  to  collect  the  moneys  received  by  means  of 
the  rates  in  the  then  present  or  in  any  subsequent  year."  Held, 
the  obligation  of  the  bond  was  not  confined  to  the  year  for  which 
he  was  originally  appointed,  but  extended  also  to  all  subsequent 
years  in  which  he  was  continuously  re-appointed.-'  A  statute 
provided  that  the  sureties  of  a  clerk  should  be  liable  for  the 
whole  period  he  might  continue  in  office,  and  his  bond  provided 
for  his  good  behavior  "  during  the  whole  jDcriod  the  said  * 
shall  or  may  continue  in  the  said  office."  Tiie  clerk  was  re-elected 
for  a  new  term,  but  gave  no  new  bond.  Held,  the  sureties  on  his 
original  bond  were  liable  for  his  acts  during  his  second  term. 
The  Court  based  its  decision  upon  the  express  provisions  of  the 
statute  and  the  terms  of  the  bond,  and  held  that  a  recital  in 
the  beginning  of  the  bond,  that  the  clei'k  had  been  elected 
for  four  years  did  not  change  the  result."  The  commission 
of  a  collector  of  customs  appointed  him  "  a  collector  of  Her 
Majesty's  customs  in  the  province  of  Canada,"  and  the  bond  was 
conditioned  for  the  performance  of  his  duties  generally.  In  a 
suit  on  the  bond,  the  surety  plead  that  the  bond  was  executed  in 
reference  to  the  office  of  collector  at  B,  and  that  he  made  no  de- 
fault while  at  B,  but  was  transferred  to  another  place,  and  there 
made  default.  Held,  the  plea  was  bad,  as  the  bond  was  clearly  gen- 
eral and  could  not  be  narrowed  in  its  application  by  alleging  that 
something  less  was  meant.^  In  1831,  while  a  statute  was  in  force 
which  provided  that  a  cashier  should  hold  his  office  until  remov- 
ed therefrom  or  another  was  appointed  in  his  stead,  a  cashier 
was  aj)pointed,  and  gave  bond  for  the  faithful  discharge  of  the 
duties  of  his  office.  In  1832  he  was  re-appointed,  but  gave  no 
new  bond.     The  record  of  his  appointment  both  times   stated 

'  Aiigero  V.  Keen,  1  Mees.  &  Wels.  ^  Treasurers  v.  Lang,  2  Bailey  Law 

390.  (So.  Car.)  430. 

sRegina  v.  Miller,  20  Up.  Can.  Q.  B.  R.  485. 


204:  LIABILITY    OF    SURETY. 

tlmt  lie  was  a]-)pointed  "for  the  year  ensuing."  He  held  the  of- 
fice without  any  new  appointment  till  1836,  when  he  committed 
a  default.  Held,  the  sureties  on  the  bond  given  when  he  was 
first  appointed,  were  liable  therefor.  The  law  made  the  office  a 
continuing  one,  and  the  parties  had  this  fact  in  contemplation 
when  the  bond  was  made.' 

§  145.  When  general  •words  of  obligation  not  limited  by  other 
words  or  circumstances. — The  liability  of  sureties  on  the  general 
bond  of  a  manufacturer  of  tobacco,  given  in  pursuance  of  the 
United  States  revenue  law,  does  not  cease  upon  the  expiration  of 
his  license  as  such  manufacturer.  The  provision  of  the  law 
making  the  neglect  of  a  manufacturer  of  tobacco  to  procure  a 
license  a  punishable  offense,  was  not  designed  for  the  benefit  of 
sureties,  but  to  protect  the  government  against  the  frauds  of  the 
manufacturer."  The  office  of  tax  collector  continued  two  years, 
but  the  law  required  the  collector  to  give  a  bond  as  to  the  state 
taxes  every  year.  The  bond  given  by  a  collector  on  going  into 
office,  recited  that  he  had  been  elected  for  two  years,  and  provided 
that  he  should  "  well  and  truly  collect  all  state  taxes  which,  by 
law,  he  ought  to  collect,  and  well  and  truly  account  for  and  pay 
over  all  taxes  by  him  collected,  or  which  ought  to  be  by  him  col- 
lected, according  to  law:"  Held,  the  sureties  were  liable  for  the 
state  taxes  received  by  the  collector  the  second  year.'  A  statute 
provided  that  a  sheriff  should  hold  office  for  one  year,  and  might 
"with  his  own  consent  and  the  approbation  of  the  executive,  be 
continued  for  two  years."  The  first  year  a  sheriff  held  office,  a 
deputy  gave  bond  conditioned  for  his  good  behavior  "  for  and 
during  the  time  said  *  (sheriff  )  may  continue  in  office."  The 
sheriff  continued  in  office  two  years:  Held,  the  sureties  on  the  bond 
of  the  deputy  were  liable  for  his  acts  during  the  second  year.* 
"When  the  bond  of  an  officer  is  general  in  its  terms,  and  the  office 
is  not  annual,  the  liability  of  the  surety  is  not,  in  the  absence  of 
special  circumstances,  limited  to  a  year.^  A  party  was  elected 
cashier  of  a  bank  in  1814,  when  it  was  first  organized,  and  again 
in  1815  and  1817,  by  directors  chosen  annually,  and  he  continued 
to  act  as  cashier  from  his  first  election  till  1823,  when  he  com- 

'  Amherst  Bank   v.  Root,   2   Met.  'Allison    v.    The  State,    8  Heisk. 

(Mass.)  522.  (Tenn.)  312. 

'  United  States  v.  Truesdell,  2  Bond,  *  Jacobs  v.  Hill,  2  Leig-h  (Va.),  393. 

'"•  ^  Mayor  of  Birminp:ham  v.  Wright, 

16  Ad.  &  Ell.  N.  S.  623. 


CIRCUMSTANCES   NOT   LIMITING    GENERAL    OBLIGATION.  205 

mitted  a  breacli  of  duty :  Held,  a  bond  given  by  him,  with  sureties, 
upon  liis  first  election,  for  the  faithful  performance  of  his  duties 
"  so  long  as  he  should  continue  in  said  office,"  covered  this  breach 
of  duty,  it  not  appearing  in  the  bond  or  the  charter,  or  regula- 
tions of  the  bank,  that  the  office  was  annual.  "  There  was  nothing 
to  make  the  sureties  suppose  it  was  limited  to  a  year."  *  A  deed 
of  guaranty  made  in  Lower  Canada  by  C,  recited  that  one  M, 
who  had  been  a  member  of  the  firm  of  C  &  Sons,  required  pecu- 
niary assistance  to  meet  the  engagements  of  that  firm,  which  was 
agreed  to  be  afforded  by  a  bank,  and  by  such  guaranty  C  and 
others  agreed  to  become  sureties  for  all  the  then  present  and  fu- 
ture liabilities  of  M  with  the  bank.  M  contracted  debts  with  the 
bank  which  had  no  reference  to  the  firm  of  C  &  Co.:  Held,  that 
although  the  recital  in  the  instrument  was  special,  yet  it  did  not 
control  the  generality  of  the  subsequent  operative  words,  and  that 
the  guarantors  were  liable  for  such  advances." 

§  146.  "When  general  words  of  obligation  not  limited  by- 
other  words  or  circumstances. — By  statute  the  term  of  office  of 
the  chairman  of  the  superintendents  of  schools  continued  for  one 
year,  and  until  his  successor  was  appointed.  Held,  the  sureties 
on  his  bond  were  liable  for  money  received  by  him  more  than  a 
year  after  he  was  appointed,  he  being  then  in  office,  and  no  suc- 
cessor having  been  appointed;  the  decision  being  put  upon  the 
ground  that  his  term  of  office  continued  until  a  successor  was 
appointed.^  A  bond  recited  that  A  had  been  taken  into  the  ser- 
vice of  a  bank,  as  a  writing  clerk,  and  was  conditioned  for  his 
due  performance  of  that  service,  "and  all  and  every  other  service 
of  the  *  (bank),  wherein  he  is,  or  shall,  or  may  be,  employed." 
He  was  afterwards  appointed  cashier  of  a  branch  bank  of  the 
bank  to  which  tlie  bond  ran,  and  afterwards  made  default.  Held, 
his  sureties  were  liable  for  such  default.^  A  bond  recited  that  the 
principal  had  been  appointed  accountant  in  a  bank,  and  provided 
that  he  should  well  and  faitlifully  perform  all  duties  in  the  bank 
wdiich  from  time  to  time  might  be  required  of  him,  and  should 
faithfully  account  for  all  moneys  which  might  be  entrusted  to  his 
care,  and  should  "  also  continue  in  said  service  for  the  term  of 

^  Dedham    Bank    v.  Cliickering,   3  ^  Chairman  of  Schools  v.  Daniel,  6 

Pick.  335,  per  Parker,  C.  J.  Jones  Law  (Nor.  Car.)  444. 

^  Bank  of  British  North  America  v.  *  Thompson    v.    Eoberts,    17    Irish 

Cuvillier,  14  Moore's    Privy  Council,  Com.  Law  Rep.  490,  held  by  a  divided 

Cas.  187.  Court. 


206  LIABILITY   OF   SUEETT. 

two  years,  unless  sooner  discliarged."  Held,  the  bond  covered 
the  acts  of  the  accountant  as  long  as  he  continued  in  the  office, 
and  was  not  limited  to  two  years.^  The  defendant,  as  surety,  ex- 
ecuted a  bond,  the  condition  of  which  recited  an  agreement  be- 
tween the  directors  of  an  East  India  railway  company  and  P, 
whereby  it  was  agreed  that  P  should  forthwith  proceed  to  such 
place  in  the  East  Indies,  at  such  time  and  by  such  conveyance 
as  the  company  should  direct,  and  should  there  serve  the  compa- 
ny at  a  certain  salary  per  month,  to  commence -on  the  day  of  his 
embarkation  at  Southampton.  The  condition  was  in  the  terms 
of  the  recited  agreement,  but  mentioned  no  place  of  embarka- 
tion. The  company  paid  P's  passage  on  a  vessel  about  to  leave 
Southampton,  but  the  vessel  left  before  he  was  ready,  and  the 
conjipany  directed  him  to  go  to  Marseilles  and  meet  the  vessel. 
This  he  failed  to  do,  nor  did  he  go  to  the  East  Indies.  Held,  the 
surety  was  liable.  The  words  in  the  recital,  "  his  embarkation  at 
Southampton,"  only  referred  to  the  time  his  salary  was  to  com- 
mence. The  surety  agreed  that  he  should  go  in  the  manner  the 
company  directed,  and  the  general  words  were  not  restrained  by 
anything  in  the  recital."  The  bond  of  a  note  clerk  in  a  bank 
provided  for  the  faithful  performance  of  his  duties,  and  recited 
that  he  "  had  been  appointed  note  clerk,  to  continue  in  office  dur- 
ing the  will  of  the  present  or  any  future  board  of  directors  of 
said  bank."  The  directors  of  the  bank  were  annual  officers,  but 
there  was  no  limitation  as  to  the  time  a  note  clerk  should  con- 
tinue in  office.  Held,  the  liability  of  the  sureties  on  the  clerk's 
bond  was  not  limited  to  one  year.  The  clerk  was  not  clerk  of 
the  directors,  but  of  the  bank,  and  the  term  of  office  of  the  clerk 
was  not  limited  by  the  official  term  of  the  directors.' 

'  Worcester  Bank  v.  Eeed,  9  Mass.  ^  Louisiana  State  Bank  v.  Ledoux,  3 

267.  La.  An.  674. 

''Evans  v.  Earle,  1  Hurl.  &  Gor.  1. 


CHAPTEK  YII. 


OF  THE    LIABILITY  OF  ACCOMMODATION  PARTIES    TO    NEGO- 
TIABLE INSTRUMENTS,  AND  OF  THE  BLANK  INDORSEE,  OF 
ANOTHER'S  OBLIGATION. 


Section. 

When  stranger  to  a  note,  who  in- 
dorses it  in  blank,  is  guaran- 
tor       ...         .         147,148 

When  blank  indorser  of  a  note  is 
not  a  guarantor        .        .        .    149 

Cases  holding  blank  indorser  of 
note  liable  as  indorser,  and  ex- 
press guarantor  liable  as  ma- 
ker      

When  blank  indorser  of  note  is 
liable  as  joint  maker 

Liability  of  blank  indorser.  Gen- 
eral observations 


150 


151 


152 


Section. 

Liability  of  blank  indorser  may 
be  shown  by  parol.  Writing 
unauthorized  agreement  above 
blank  indorsement  does  not  viti- 
ate  actual  agreement         .        ,  153 

When  indorsement  in  terms  ex- 
presses liability  of  indorser,  he 
is  held  according  to  such  terms  .  154 

Liability  of  indorsers  under  special 
indorsements  and  circumstances  155 

Liability  of  accommodation  parties 
to  bills  of  exchange.  Special 
cases 156 


§  147.  "When  stranger  to  a  note,  who  indorses  it  in  blank,  is 
guarantor. — As  to  what  is  the  precise  liability  of  a  stranger  to  an 
obligation  who  indorses  it  in  blank,  there  is  great  conflict  among 
the  decided  cases.  The  weight  of  authority  is,  that  a  stranger  to 
a  promissory  note,  payable  to  a  particular  person,  who  at  or  be- 
fore the  time  of  its  delivery  to  the  payee  indorses  it  in  blank,  is, 
in  the  absence  of  evidence  as  to  the  liability  intended  to  be  as- 
sumed, liable  as  guarantor.  The  reasoning  upon  which  these  de- 
cisions are  based  is  that  such  indorser  intended  to  assume  some 
liability.  If  he  had  intended  to  become  a  joint  maker,  he  would 
have  signed  the  note  on  its  face.  Not  being  a  party  to  the  note, 
the  title  to  it  does  not  pass  by  his  indorsement,  and  he  is  not  li- 
able as  indorser.  And  being  neither  principal  nor  indorser,  in 
order  to  effectuate  the  presumed  intention  of  the  parties,  he  will 
be  held  liable  as  guarantor.^      The  same  thing  has  been  held 


*  Firman  v.  Blood,  2  Kansas,  496; 
Chandler  v.  Westfall,  30  Texas,  475; 
Pahlman  v.  Taylor,  75  111.  629;  Fuller 
V.  Scott,  8  Kansas,  25;  Van  Doren  r. 


Tjader,  1  Nevada,  380;  Heintz  v. 
Cahn,  29  111.  308;  Cushman  v.  De- 
ment, 3  Scam.  (111.)  497;  Klein  u  Cur- 
rier, 14  111.   237;  Watson  v.  Hurt,  6 


(207) 


203      ACCOMMODATION   TAKTIES   TO    NEGOTIABLE   INSTRUMENTS. 

where  a  straiif^er  to  a  note  indorsed  it  in  blank  after  it  was  deliv- 
ered by  the  payee.'  In  such  cases  tlie  holder  of  the  note  may  at 
the  time  of  the  trial  or  any  time  before,  write  a  guaranty  over 
the  name  of  the  indorser,"  and  this  may  be  done  after  the  death 
of  the  indorser.'  A  party  gave  a  storage  receipt  for  grain,  and  a 
stranger  to  it  indorsed  it  in  blank  for  the  purpose  of  becoming  a 
guarantor.  The  ci'ain  was  not  delivered,  and  the  holder  of  the 
receipt  filled  the  blank  above  the  name  of  the  indorser  with  a 
guaranty,  and  sued  on  it.  Held,  the  blank  might  be  so  filled,  and 
that  this  took  the  case  out  of  the  Statute  of  Frauds.  The  court 
said:  "  On  such  an  instrument  he  (the  indorser)  cannot  become 
liable  as  indorser;  nor  can  he  become  liable  as  maker  unless  he 
places  his  name  on  the  instrument  at  the  time  of  its  execution, 
and  as  in  sucli  case,  he  manifestly  intends  to  become  liable  in  some 
capacity  or  other  to  the  holder,  it  can  only  be  as  guarantor."  *  In  the 
absence  of  evidence  the  presumption  is  that  the  blank  indorsement 
of  a  note  by  a  stranger  was  made  at  the  time  the  note  was  executed.* 
And  the  same  presumption  exists  where  the  instrument  upon 
which  the  indorsement  is  made,  is  a  receipt  for  the  delivery  of 
grain,  and  not  negotiable.®  It  has  been  held  that  if  the  blank  in- 
dorsement of  a  note  by  a  stranger  to  it,  is  made  after  it  has  been 
in  circulation,  the  indorser  will  not,  in  the  absence  of  proof,  be 
held  as  guarantor,  but  will  be  held  as  indorser  simply,  the  pre- 
sumption being  that  the  note  was  transferred  from  holder  to  holder 
by  blank  indorsement.''  A  stranger  to  a  bond,  who  indorsed  it 
in  blank  and  transferred  it  to  his  creditor  in  payment  of  a  debt, 
has  been  held  liable  as  guarantor.* 

§  148.      When   stranger  to   a   note  who  indorses  it  in  blank  is 

Gratt.  (Va.)  633;  Camden  v.  McKoy,  contra,  Needhams  v.  Page,  8  B.  Mon. 

3  Scam.  (111.)  437;  Horton  v.  Maiming,  (Ky.)  465. 

37  Texas,    23;  Clark  v.   Merriam,  25  ^  jjorton  i?.  Manning,   37  Texas,  23. 

Conn.   576;    Champion  t\  Griffith,   13  *  Underwood  t?.  Hossack,  88  111.  208, 

Ohio,  228;  contra,  Levi  v.  Mendoll,  1  per  Walker,  J. 

Dnvall  (Ky.)  77.  <>  Carroll  v.  Weld,  13  111.  682;  Web- 

'  Thomas  v.  Jennings,  5  Smedes  &  ster  v.   Cobb,  17   111.  459;    White  v. 

Mar.  (Miss.)  627;  Killian  v.   Ashley,  Weaver,     41    111.    409;     Boj'nton    v. 

24  Ark.  511;  Stagg  v.  Linnenfelser,  59  Pierce,  79  111.  145;  Cook  v.  Southwick, 

Mo.  336.  9  Texas,  615. 

^Boynton    v.    Pierce,  '?9    111.    145;  « Underwood  v.  Hossack,  38  111.  208. 

Fear  ij.  Dunlap,  1  Greene  (loa.)  331;  ^Webster  v.    Cobb,    17    111.    459; 

Chandlery.  Westfall,    30  Texas,  475;  Whiter;.  Weaver,  41  111.  409. 

Gist  i\  Drakely,   2  Gill,   (Md.)  380;  ^Keames  r.   Montgomery,   4  West 

Leech  v.  Hill,    4  Watts,  (Pa.)    448;  Va.  29. 


BLANK   INDORSEMENT    BY    STRANGER.  209 

guarantor. — Bj  the  common  law  of  Connecticut,  the  blank  in- 
dorsement of  a  note  (negotiable  or  not  negotiable)  by  a  stranger 
to  it,  in  the  absence  of  evidence,  implies  prima  facie  a  contract 
on  the  part  of  the  indorser  that  the  note  is  due  and  payable  ac- 
cording to  its  tenor;  that  the  maker  shall  be  of  ability  to  pay  it 
when  it  comes  to  maturity,  and  that  it  is  collectible  by  due  dili- 
gence on  the  part  of  the  holder.'  Another  court  has  held  that 
when  a  person  not  before  a  party  to  a  note,  puts  his  name  on  its 
back  out  of  the  course  of  regular  negotiability,  he  is  not  an  in- 
dorser accordino;  to  the  strict  commercial  sense  of  that  term. 
"  He  is  termed  a  guarantor,  and  this  is  so  whether  his  inscription 
is  simply  in  blank,  or  preceded  by  the  words  '  I  guaranty.'  * 
A  name  written  on  the  back  of  a  note  gave  to  the  writer  his  title 
of  indorser,  and  fixed  the  character  of  his  liability.  If  the  name 
was  written  without  regular  succession,  according  to  commercial 
usage,  a  distinction  in  the  description  of  the  latter  was  instituted, 
and  he  was  called  '  guarantor.'  This  distinction,  however,  was 
only  in  name;  the  act  performed  by  each  is  precisely  the  same; 
and  it  is  a  well  settled  and  safe  rule  that  the  act  discloses  the  intent. 
*  "Where  one  writes  his  name  on  the  back  of  a  promissory 
note,  either  in  blank  or  accompanied  by  the  use  of  general  terms, 
his  undertaking  is  attended  with  all  the  rights  and  all  the  liabil- 
ity of  an  indorser  st7'icti  juris.^^  ^  In  a  later  case  in  the  same 
court,  it  is  held  that  where  a  person  not  before  a  party  to  a  note, 
indorses  it  before  its  delivery,  his  liability  is  that  of  a  surety,  and 
demand  and  notice  are  necessary  in  order  to  fix  his  liability,  and 
the  doctrine  of  the  case  last  referred  to  is  fully  approved.  The 
court  said:  "  In  England  he  is  held  to  be  a  guarantor,  and  his 
contract  is  that  the  maker  of  the  note  will  pay  at  maturity,  or, 
if  he  does  not,  the  guarantor  will.  J^o  demand  or  notice  is  con- 
sidered necessary  as  a  condition  precedent  to  fix  the  liability  of 
the  guarantor."  After  saying  there  was  great  conflict  of  author- 
ity, the  court,  speaking  of  guarantor  and  indorser,  proceed- 
ed: "Each  undertakes  that  the  maker  will  pay  the  note 
at  maturity,  and  in  case  of  being  compelled  to  pay  it  for  the 
principal,   each    has    recourse   upon    his  principal    to    recover 

»  Ranson  v.  Sherwood,  26  Conn.  437.  Conn.  223;  Perkins  v.  Catlin,  11  Conn. 

For  other  decisions  of  the  same  court,  213. 

on  this  subject,  see  Clark  v.  Merriani,  *  Riggs  v.  Waldo,   2  Cal.   485,   per 

25  Conn.    576;  Castle  v.   Candee,  16  Heydenfeldt,  J. 
14 


210      ACCOM^ilODATION    TAKTIES   TO    NEGOTIABLE    INSTRUMENTS. 

the  amount  paid."*  The  law  on  tliis  subject  has  been 
thus  stated  by  another  court  :  "  The  mere  indorsement 
upon  a  note,  of  a  stranger's  name  in  blank,  is  jprima  facie  evi- 
dence of  guaranty.  To  charge  such  person  as  a  maker,  there 
must  be  proof  that  his  indorsement  was  made  at  the  time  of  exe- 
cution by  the  other  party,  or  if  afterwards,  that  it  was  in  pursu- 
ance  of  an  agreement  or  intention  that  he  should  become  respon- 
sible from  the  date  of  the  execution.  Such  agreement  or  intention 
may  be  proved  by  parol.  The  rule  is  the  same  whether  the  in- 
strument is  negotiable  or  not.""  A  made  his  note  payable  to  B. 
It  was  afterwards  transferred  to  C,  who  for  a  valuable  considera- 
tion transferred  it  to  D,  and  at  the  same  time  wrote  his  name  in 
blank  on  its  back.  There  was  no  other  name  on  the  back  of  the 
note.  Held,  C  was  liable  as  guarantor.  The  court  said  :  "  The 
defendant  cannot  be  charged  as  a  surety,  for  he  was  no  party  to 
the  original  contract.  *  ISTor  can  he  be  charged  as  indorser,  for 
the  note  was  not  indorsed  by  the  payee."  ^  A  party  made  a  note 
payable  to  himself  or  order,  and  two  parties,  strangers  to  the  note, 
indorsed  it.  The  blank  above  the  names  of  the  indorsers  were 
filled  with  separate  guaranties,  and  then  the  maker  indorsed  it 
and  delivered  it  to  the  holder.  Held,  the  indorsers  were  not 
liable  as  guarantors  but  as  indorsers.  "  Where  the  note  creates 
no  valid  obligation  against  the  maker,  and  can  create  none  until 
it  is  indorsed  and  transferred  by  the  payee,  the  presumption  is 
that  the  person  writing  his  name  in  blank  upon  the  back  of  the 
note,  assumes  the  obligation  of  an  indorser.  Inasmuch  as  the 
note  can  never  have  any  validity  until  the  name  of  the  payee  ap- 
pears upon  it  as  an  indorser,  the  person  writing  his  name  in 
blank  ujDon  the  note,  understands  that  when  the  note  takes  effect, 
his  name  will  appear  upon  it  as  a  second  indorser,  and  it  is  rea- 

'  Jones  V.  Goodwin,  39  Cal.  493.     In  ruled  by  Aud  v.  Magruder,  10  Cal.  282. 

Biyan  v.  Berry,  6   Cal.   394,   the   Su-  The  decisions  on  this  subject  in  Cali- 

preme  Court  of  California  decided  that  fornia  are  veiy  inharmonious.      For 

it  made  no  difference  on  what  part  of  other  cases,  see  Pierce  v.  Kennedy,  5 

a  note  the  name  of  a  party  who  was  Cal.  138;  Brady  t'.  Reynolds,  13  Cal.  31. 

secondarily  liable  appeared,   he  was  ''Champion  tJ.  Griffith,  13  Ohio,  228. 

liable  as  indorser.     It  did  not    pro-  For  other  decisions  of  the  same  court, 

fess  to  follow  authority,  which  it  said  on  this  subject,  see  Parker  v.  Riddle, 

was  full  of  refinements  and  contradic-  11  Ohio,  102;  Seymour  v.  Mickey,  15 

tions,  but  professed  to  adopt  a  safe  and  Ohio  St.  515. 

certain  rule,  free  from  all  obscurity.  ^  Chiton  v.  Hears,  11  Met.  (Mass.) 

Bryan  v.  BeiTy  was,   however,    over-  563. 


BLANK    INDORSEMENT    BY   STEANGEE.  211 

sonable  to  conclude  tliat  such  was  tlie  position  wliich  lie  intended 
to  occupy."  And  all  persons  receiving  such  note  are  by  its  form 
notified  of  these  facts.' 

§  149.  When  the  blank  indorser  of  a  note  is  not  a  guarantor. 
— After  a  promissory  note  became  due,  the  holder  agreed  to  ex- 
tend the  time  of  payment  about  ten  months,  if  the  maker  would 
get  F  to  indorse  the  note.  "Without  knowing  of  this  agreement, 
F  indorsed  the  note  in  blank,  only  writing  over  his  signature  the 
date  of  making  it.  In  a  suit  against  F  on  the  note,  it  was 
held  he  was  not  a  maker  nor  indorser,  and  could  not  be  held  as 
guarantor,  because  a  guaranty  must  be  in  writing,  and  if  such,  a 
guaranty  might  have  been  written  over  the  signature,  it  had  not 
been  done.^  The  payee  of  a  note  indorsed  it  in  blank,  A  guar- 
anty was  written  over  his  name  in  a  different  hand.  Held,  the 
presumption  was  that  the  indorser  was  an  assignor,  and  only  sec- 
ondarily liable.  The  court  said:  "  The  fact  that  a  contract  of  guar- 
anty is  found  written  above  the  name  of  the  indorser,  in  a  hand- 
writing not  his  own,  would  not  of  itself  be  sufficient  to  raise  a 
presumption  that  it  was  done  by  his  authority,  or  that  the  con- 
tract was  there  when  he  wrote  his  name,  because  the  presence  of 
his  name  is  to  be  accounted  for  by  the  fact  that  as  payee  of  the 
note,  it  was  necessary  for  him  to  indorse  it  in  order  to  give  it  ne- 
gotiability. To  hold  that  any  person  through  whose  hands  a  note 
may  pass,  can  write  a  guaranty  over  a  blank  indorsement,  and 
then  require  the  indorser  to  disprove  it,  would  be  fruitful  of  fraud, 
and  dangerous  to  eveiy  person  who  has  occasion  to  receive  and 
indorse  a  promissory  note."  ^  It  has  been  held  that  where  the 
name  of  a  stranger  to  a  note  occupies  the  position  as  a  sec- 
ond indorser,  he  cannot  be  held  as  guarantor,  unless  it  is 
established  by  extraneous  evidence  that  he  agreed  to  become 
a  guarantor.*  Upon  a  note  in  this  form:  "We,  A  and  B,  as 
principal,  and  C  and  D  as  surety,  promise  to  pay  to  the  order 
of  ourselves,"  etc.,  and  signed  on  its  face  only  by  A  and  B,  and 
indorsed  successively  by  A,  B,  C  and  D,  the  liability  of  D  is 
that  of  surety  or  joint  promisor  in  a  note  payable  to  the  order  of 
the  ]3rincipais  and  by  them   indorsed.     It  was  claimed  that  he 

^Blatchford  v.  Milliken,  35  111.  434,  Lawrence,  J.;  see,    also,    on  similar 

per  Beckwith,  J.  point,  Klein  v.  Currier,  14  111.  237. 

=  Moore  v.  Folsom,  14  Minn.  340.  *Bogue  v.  Melick,  25  lU.  91. 
"Dietrich  v.  Mitchell,  43  111.  40,  per 


'213      ACCOMMODATION   PARTIES   TO   NEGOTIABLE   INSTRUMENTS. 

was  an  indorser  only  as  tlie  note  was  indorsed  by  the  prom- 
isee. The  court  said  that  would  have  been  so  if  the  note  had 
been  in  the  usual  form:  "But  this  note  is  peculiar,  and  the  appli- 
cation of  the  rule  is  controlled  by  the  express  declaration  in  the 
contract  itself  of  the  nature  of  the  liability  assumed." '  With 
reference  to  the  liability  of  a  stranger  to  it,  who  indorses  a  note 
in  blank,  the  following  has  been  held:  "When  a  man  puts  his 
name  on  the  back  of  negotiable  paper  before  the  payee  has  indorsed 
it,  he  means  to  pledge  in  some  shape  his  responsibility  for  the  pay- 
ment of  it.  ^  In  the  absence  of  legal  evidence  of  any  different 
contract,  he  assumes  the  position  of  second  indorser;  and  *  to 
render  his  engagement  binding  as  to  any  holder  of  the  note,  the 
implied  condition  that  the  payee  shall  indorse  before  him,  must 
be  complied  with,  so  as  to  give  him  recourse  against  such  payee."  * 
On  the  other  hand,  it  has  been  held  that  where  a  person,  not  a 
party  to  a  bill  or  note,  indorses  his  name  on  it,  he  is  presumed  to 
have  done  so  as  a  surety,  and  not  as  an  indorser;  and  if  such  in- 
dorser signs  his  name,  thus  intending  to  become  indorser  and  not 
surety,  it  will  make  no  difference,  as  it  is  an  error  of  law  which 
will  not  avail  him  in  the  absence  of  fraud  by  the  other  party. ^ 

§  150.  Cases  holding  blank  indorser  of  note  liable  as  indors- 
er, and  express  guarantor  liable  as  maker. — A  stranger  to  a  note 
before  its  delivery  wrote  upon  its  back  the  following:  "  For  value 
received  I  guaranty  the  payment  of  the  within  note,  and  waive 
notice  of  non-payment."  Held,  this  constituted  him  a  joint 
maker  of  the  note,  and  that  he  could  be  sued  jointly  with  the 
other  makers.  The  court  said  "  How  is  this  distinguishable  from 
a  direct  signature  as  surety?"  In  the  latter  case  both  promise  to 
see  the  money  paid  at  the  day.  A  man  writes  thus  :  '  I  promise 
that  $100  shall  be  paid  to  A  or  bearer;'  who  would  doubt  that 
such  a  promise  would  be  a  good  note?  The  use  of  the  word  guar- 
anty, or  warrant,  or  stipulate,  or  covenant,  or  other  word  import- 
ing an  obligation,  does  not  vary  the  effect.  Eead  the  obligation 
of  a  man  who  signs  a  note  with  his  principal  'A.  B.  surety;'  both 
and  each  stipulate  in  the  language  of  the  note  I  have  supposed. 
Both  promise  that  the  payee  shall  receive."*     The  same  court 

'  National  Pemberton  Bank  r.  Lou-  ^g^^^j-jj  p_   Gorton,    10  La.  (Curry) 

gee,  108  Mass.  371,  per  Colt,  J.  374. 

*  Eilbert  v.  Finkbeiner,  68  Pa.  St.  ^  Luqueer  v.  Prosser,  1  HiU  (N.  Y.) 

243,   per    Sharswood,    J.     To    same  256,  per  Cowen,  J. 
effect,  see  Sill  v.  Leslie,  16  Ind.  23G. 


BLANK    IJsTDOESEE   LIABLE    AS   JOINT    MAKER.  213 

held  tliat  a  party  who  in  express  terms  guarantied  the  payment 
of  a  note,  was  not  an  indorser,  but  was  a  guarantor,  and  that  he 
did  not  come  under  the  designation  of  an  indorser,  within  tlie 
terms  of  a  statute  providing  for  the  severing  of  actions  in  suits 
against  makers  and  indorsers  of  notes.*  A  stranger  to  a  negotia- 
ble note  indorsed  it  in  blank  before  it  was  delivered.  No  demand 
of  payment  had  been  made,  nor  had  notice  of  dishonor  been  given 
the  indorser.  Held,  he  was  not  liable  on  his  indorsement.  He 
was  an  indorser  and  could  not  be  held  as  a  guarantor.  The  court 
said  that  an  indorser,  even  though  a  stranger  to  a  note  and  sign- 
ing before  its  delivery,  could  not  be  held  as  a  guarantor  unless  it 
w^as  impossible  to  hold  him  in  any  other  character.  If  the  note 
was  negotiable,  he  could  not  be  held  as  guarantor.  But  if  it  was, 
not  negotiable,  he  might  be  held  as  guarantor,  because  in  such 
case,  as  there  is  "  no  possibility  of  raising  the  ordinary  oblio-ation 
of  indorser,  there  is  then  room  to  infer  that  a  different  obligation 
was  intended."  The  question  depends  entirely  on  the  fact  of  ne- 
gotiability." It  was  subsequently  held  by  the  same  coui-t  that  a 
stranger  to  a  non-negotiable  note,  who  before  its  delivery,  in- 
dorsed it  in  blank,  was  liable  either  as  maker  or  guarantor,  and 
not  as  indorser.^ 

§  151.  When  blank  indorser  of  note  is  liable  as  joint 
maker. — There  is  a  class  of  cases  peculiar  to  New  England,  which 
hold  that,  in  the  absence  of  evidence,  a  stranger  to  a  promissory 
note,  who  indorses  it  in  blank  before  its  delivery,  is  liable  as  a 
joint  maker.  The  reasoning  upon  which  these  decisions  rest,  is 
thus  stated  by  the  Court  :  "  He  is  not  liable  as  indorser,  for  the 
note  is  not  negotiated  or  title  made  to  it  through  his  indorsement, 
nor  as  guarantor,  because  there  is  no  separate  or  distinct  consid- 
eration ;  but  he  means  to  give  security  and  validity  to  the  note 
by  his  credit  and  promise  to  pay  it,  if  the  promisor  does  not,  and 
that  upon  the  original  consideration,  and,  therefore,  he  is  a  prom- 
isor and  surety,  and  it  is  immaterial  to  this  purpose  on  what  part 
of  the  note  he  places  his  name."*     The   same   court  held  that 

1  Miller  v.  Gaston,  2  Hill  (N.  Y.)  188.       17  Johns,  326;  Spies  v.  Gilmore,  1  New 

2  Hall  V.  Newcomb,  3  Hill  (N.  Y.)      York,  321. 

288;  affirmed  by  the  Court  of  Errors;  ^  Richards  v.  Warring,    4  Abbott's 

Hall  V.  Newcomb,  7  Hill,  416;  to  same  Rep.  Omitted  Gas.  47. 

or  similar  effect,  see  Seabury  v.  Hun-  *  Per  Shaw,C.  J.,  in  Chaffee  v.  Jones 

gerford,  2  Hill,  80;  Ellis  v.  Brown,  6  19  Pick.  260;  Baker  v.  Briggs,  8  Pick! 

Barb.  (N.  Y.)  282;  Tillman  v.  Wheeler,  122;  Martin  v.  Boyd,  11  New  Hamp.' 


214       ACCOMMODATION    PARTIES   TO    NEGOTIABLE    INSTRUMENTS. 

sti'ani;-crs  to  a  note,  who  before  its  delivery  indorsed  their  names 
in  Wank  upon  it,  were  not  liable  as  joint  makers,  if  the  payee 
afterwards  and  before  its  delivery  indorsed  his  name  upon  it 
above  theirs.  The  Court  said  that  the  rule  holding  indorsers  in 
any  case  to  be  joint  makers,  was  anomalous  and  peculiar  to 
Massachusetts,  and  should  not  be  extended  beyond  what  the 
Court  was  bound  to  do  by  previous  decisions.'  Where  a  stranger 
to  a  non-negotiable  note,  at  the  time  it  was  made,  indorsed  it  in 
blank,  it  was  held  that  in  the  absence  of  proof  he  was  liable  as 
an  original  promisor  or  surety,  and  might  be  sued  jointly  with 
the  maker.'  It  has  also  been  held  that,  where  it  is  the  inten- 
tion of  the  parties  that  an  indorser  shall  be  a  joint  maker,  it 
makes  no  difference  if  his  signature  appears  on  the  back  of  the 
instrument,  and  he  is  liable  to  be  sued  jointly  with  the  other 
maker.'  A  corporation  made  a  promissory  note  under  seal.  A 
stranger  indorsed  it,  and  was  sued  on  such  indorsement.  Held, 
the  right  of  action  was  not  on  the  sealed  instrument,  but  on  the 
indorsement,  which  was  a  collateral  and  distinct  contract,  and 
the  indorser  having  become  such  on  a  valuable  consideration,  be- 
came absolutely  liable  to  pay  the  money." 

§  152.  Liability  of  blank  indorser — General  observations. — 
The  law  with  reference  to  the  liability  of  the  blank  indorser  of  a 
promissory  note  has  been  thus  summarized  by  a  court  of  high 
authority:  "When  a  promissory  note,  made  payable  to  a  par- 
ticular person  or  order,  *  is  first  indorsed  by  a  third  person, 
such  third  person  is  held  to  be  an  original  promisor,  guarantor, 
or  indorser,  according  to  the  nature  of  the  transaction  and  the 
undertaking  of  the  parties  at  the  time  the  transaction  took  place. 
If  he  put  his  name  on  the  back  of  the  note  at  the  time  it  was 
made,  as  suretj'-  for  the  maker,  and  for  his  accommodation,  to 
give  him  credit  with  the  payee,  or  if  he  participated  in  the  con- 
sideration for  which  the  note  was  given,  he  must  be  considered 
as  a  joint  maker  of  the  note.  On  the  other  hand,  if  his  indorse- 
ment was  subsequent  to  the  making  of  the  note,  and  he  put  his 
name  there  at  the  request  of  the  maker,  pursuant  to  a  contract 

335;   FHnt  v.  Day,  9  Vt.  345;  Sanford  ^  (^^^^  ^   Southwick,  9  Texas,  615; 

V.  Noi-ton,  14  Vt.  228;  Strong?;.  Riker,  see,  also,  Good  v.  Martin,  17  Am.  Law 

16  Vt.  554;  to  ganae  effect,  see  Chafiee  Keg.  111. 

r.  The  Memphis,   C.  &  N.  W.  R.  R.  »  Schmidt   v.    Schmaelter,   45  Mo. 

Co.,  64  Mo.  193.  502. 

'  Clapp  V.  Rice,  13  Gray,  403.  ■*  Gist  v.  Drakely,  2  Gill  (Md.)  330. 


LIABILITY   OF   BLANK   INDOKSER    SHOWN   BY    BAROL.  215 

witli  the  payee,  for  further  indulgence  or  forbearance,  he  can  only 
be  held  as  guarantor.  But  if  the  note  was  intended  for  discount, 
and  he  put  his  name  on  the  back  of  it,  with  the  understanding 
of  all  the  parties  that  his  indorsement  would  be  inoperative  un- 
til it  was  indorsed  by  the  payee,  he  would  then  be  liable  only  as 
a  second  indorser  in  the  commercial  sense,  and  as  such,  would 
clearly  be  entitled  to  the  privileges  which  belong  to  such  indors- 
ers." '  It  is  apparent  from  tlie  cases  which  have  been  cited,  that 
the  question,  "  What  is  the  liability  which,  in  the  absence  of  ex- 
planatory evidence,  the  law  imposes  upon  the  blank  indorser  of 
the  obligation  of  another?"  is  one  to  which  no  answer  can  be 
given  that  will  harmonize  all  the  authorities.  The  decisions 
have  been  almost  as  various  as  the  forms  of  the  obligations  in- 
dorsed. Some  courts  have  held  that  the  nature  of  the  liability 
depended  entirely  on  whether  or  not  the  indorsed  instrument  was 
negotiable,  while  other  courts  have  held  that  the  nature  of  the 
liability  was  not  at  all  affected  by  the  fact  of  the  negotiability  of 
the  indorsed  instrument.  A  controlling  influence  has  in  numer- 
ous other  respects  been  given  to  circumstances  by  some  courts 
which  have  been  wholly  ignored  by  others.  E^or  is  the  conflict 
of  authority  confined  to  courts  of  different  states,  but  there  are 
several  instances  of  the  same  court  holding  different  views  of  the 
subject  at  different  times.  Other  courts,  while  following  their 
own  former  decisions,  have  admitted  they  were  contrary  to  the 
weight  of  authority.  It  follows,  of  course,  that  no  general  rules 
can  be  laid  down. 

§  153.  Liability  of  blank  indorser  may  ba  shown  by  parol — 
"Writing  unauthorized  agreement  above  blank  indorsement,  does 
not  vitiate  actual  agreement. — It  is,  however,  well  settled  that  the 
agreement  upon  which  the  blank  indorser  of  anotlier's  obligation 
signed,  and  the  liability  which  he  intended  to  assume,  may  (at 
least,  between  the  original  parties,  or  those  parties  and  a  holder 
with  notice,)  be  shown  by  parol  evidence,  and  he  will  be  held  only 
according  to  such  agreement  and  intention."     The  fact  that  the  in- 

1  Rey  V.  Simpson,  22  Howard  (U.  S.)  Strong  v.  Kicker,  16  Vt.  554;  Baker  v. 
341,  per  ClitFord,  J.;  see,  also.  Good  r.  Briggs,  8  Pick.  122;  Sill  v.  Leslie,  16 
Martin,  17  Am.  Law  Reg.  Ill;  Bur-  Ind.  236;  Good  i'.  Martin,  17  Am.  Law 
ton  V.  Hansford,  10  West  Va.  470.  Reg.  Ill;  Rey  v.  Simpson,  22  Howard 

2  San  ford  v.  Norton,  14  Vt.  228;  (U.  S.)  341;  Seymour  v.  Mickey,  15 
Cook  t^.  Southwick,  9  Texas,  015;  Bur-  Ohio  St.  515;  Perkins  v.  Catlin,  11 
ton  V.  Hansford,   10  West  Va.  470;  Ct.  213;  CaiToU  v.  Weld,  13  111.  682; 


21G       ACCOMMODATION    TAKTIES   TO    XEGOTIABLE    INSTRUMENTS. 

dorser's  iicime  is  on  the  back  of  the  obligation,  is  itself  evidence 
that  he  intended  to  assume  some  liability,  but  what  liability  the 
writing  does  not  in  terms  show.  The  parol  evidence  does  not 
therefore  contradict  the  terms  of  any  writing.  It  merely  estab- 
lishes a  contract  which  is  consistent  with  the  writing.  It  has 
been  said  that  such  instruments  are  anomalous,  and  the  law  not 
fixing  the  relation  of  the  indorser,  the  intention  of  the  parties 
controls.  Again,  it  has  been  held  that  the  introduction  of  parol 
evidence  in  such  cases,  is  a  well  settled  excej)tion  to  the  rule, 
which  forbids  written  instruments  to  be  contradicted  or  varied  by 
parol,  and  is  a  necessity  for  the  convenience  of  commerce.  In  a 
suit  against  the  indorser  of  a  note,  he  oiFered  to  prove  by  parol 
that  he  indorsed  it  as  surety,  and  that  it  was  understood  between 
him  and  the  creditor  at  the  time  the  indorsement  was  made,  that 
the  note  was  to  be  paid  by  him  out  of  money  which  he  might 
collect  from  accounts  of  the  principal  then  in  his  hands.  The 
code  provided  that  parol  evidence  should  not  be  received  beyond 
or  against  a  written  act.  Held,  the  evidence  was  admissible. 
The  court  said:  "  The  evidence  offered  was  neither  to  contradict 
nor  explain  a  written  instrument,  but  to  prove  a  collateral  fact  or 
agreement  in  relation  to  it."  ^  AYith  reference  to  the  reception 
of  parol  evidence  to  explain  a  blank  indorsement,  another  court 
has  said:  "  Xor  does  this  position  impugn  the  doctrine  that 
written  contracts  are  not  to  be  varied  by  parol,  for  here  is  no 
contract  in  writing.  There  is  evidence  of  a  contract  of 
some  kind,  but  its  particular  terms  are  not  given  on  the  paper, 
but  are  left  to  be  ascertained  by  parol."  ^  Where  the  payee  of  a 
bill  of  exchange  brings  suit  against  the  two  drawers,  one  of  whom 
is  served  with  process,  and  the  other  not,  the  one  who  is  served 
may,  at  the  trial,  introduce  parol  evidence  to  show  that  he  and 
the  plaintiff",  by  a  prior  arrangement  between  themselves,  were, 

Clark  V.  Merriam,  25  Ct.  576;  Smith  because  that  would  be  to  contradict 

V.  Finch,  2  Scam.  (111.)  321;  Harris  v.  the  instrument.     And  in  Hall  v.  New- 

Pierce,  6  Ind.  162;  Boynton  v.  Pierce,  comb,  7  Hill  (N.  T.)  416;  it  was  said 

79  lU.  145;  Levi  v.  Mendell,  1  Duvall,  on  the   same  ground,  that  parol  evi- 

(Ky.)  77;  Leech  r.  HiU,  4  Watts  (Pa.)  dence  would  not  be  received  to  show 

448;  Chandler  v.   "Westfall,  30  Texas,  that  the  blank  indorser  of  a  note  in- 

475;    Lacy  v.   Lofton,  26    Ind.   324;  tended  to  become  a  guarantor. 

Pierse  r.  Irvine,  1  Minn.  369.     In  Kel-  '  Dwight    v.    Linton,    3     Robinson 

lo?g  t:  Dunn,  2  Met.  (Ky.)  215,  it  was  (La.)  57,  per  Murphy,  J. 

held  that  a  blank  indorser  could  not  be  ^gj^^-Q^^g  ^,    Lane,   5  Vt.   161,   per 

shown  by  parol  to  be  a  joint  maker,  Phelps,  J. 


WHEN   LNDOKSEMENT   EXPRESSES   LIABILITY.  217 

when  thej  severally  drew  and  indorsed  the  bill,  joint  sureties  for 
the  accommodation  of  the  other  drawer,  and  by  such  proof  defeat 
the  action,  if  he  has  paid  upon  the  bill  an  amount  equal  to  that 
paid  by  the  plaintiff/  Where  a  note  was  indorsed  in  blank  by  a 
stranger  to  it,  and  the  holder  wrote  over  the  indorsement  a  guar- 
anty with  waiver  of  notice,  when  such  was  not  the  agreement  upon 
which  the  indorser  signed,  it  was  held  that  this  did  not,  in  the 
absence  of  fraud,  vitiate  the  agreement  actually  made;  and  that 
such  agreement  might  be  recovered  upon,  notwithstanding  the 
erroneous  indorsement.  The  court  said  there  was  no  alteration 
of  a  written  contract,  because  there  was  no  written  contract  to  be 
altered.  There  was  only  a  blank  indorsement,  and  the  liability 
assumed  by  the  indorser  depended  upon  the  agreement  of  the 
parties,  and  this  was  not  aifected  by  the  erroneous  indorsement.^ 
§  154.  When  indorsement  in  terms  expresses  liability  of 
indorser,  he  is  held  according  to  such  terms. — Where  the  in- 
dorsement in  terms  expresses  the  liability  intended  to  be  assumed 
by  the  indorser,  there  is  no  room  for  extraneous  evidence  or  pre- 
sumptions of  law,  and  he  will  be  held  to  the  expressed  liability, 
and  to  that  only.  Thus,  where  the  indorsement,  by  a  stranger,  to 
a  note  was,  "  I  guaranty  the  payment  of  the  within  note,"  it  was 
held  he  was  a  guarantor  only  and  not  a  maker  or  surety.'  The 
payee  of  a  note  who  signs  his  name  to  these  words  wi'itten  on  the 
back  thereof,  "  I  hereby  guaranty  the  within  note,"  is  not  liable 
thereon  as  indorser,  but  as  guarantor.*  The  legal  holder  of  a  note 
but  not  the  payee,  indorsed  upon  it,  "  I  warrant  this  note  collect- 
ible when  due."  Held,  he  was  a  guarantor  and  not  an  indorser.* 
Two  parties  were  bound  to  another  as  principal  and  surety.  The 
note  on  which  they  were  liable  was  due,  and  the  creditor,  who  was 
pressing  for  payment,  offered  to  take  the  notes  of  a  third  person, 
held  by  the  princij^al,  if  the  principal  and  surety  would  indorse 
such  notes.  This  was  done,  the  principal  indorsing  in  blank,  and 
the  surety  thus,  "  Sam'l  K.  Allen  as  security."  Held,  Allen  was 
not  liable  as  guarantor."     An  engagement  indorsed  on  a  bill  or 

1  Kelly  V.  Few,  18  Ohio,  441.  *  Belcher  v.  Smith,  7  Cush.  482. 

2  Seymour  v.  Mickey,  15  Ohio  St.  *  Benton  v.  Fletcher,  31  Vt.  418.  To 
515.  See,  also.  Riley  r.  Gerrish,  9  a  con  rary  eft'ect  when  the  express 
Cush.  104;  Josselyn  D.  Ames,  3  Mass,  guarantor  was  the  payee,  see  Partridge 
274;  Sylvester  v.  Downer,  20  Vt.  355;  v.  Davis,  20  Vt.  499. 

Tenney  v.  Prince,  4  Pick.  385.  » Allen  v.  Coffil,  42  111.  293. 

3  Oxford  Bank  i;.  Haynes,  8  Pick.  423. 


218       ACCOMMODATION    TAKTIES    TO    NEGOTIABLE   INSTRUMENTS. 

proinissoiy  note,  under  seal,  for  $500,  of  the  same  date  with  the 
note,  was  as  follows :  "  I  hereby  acknowledge  to  be  security  for  the 
within  amount  of  five  hundred  dollars  until  satisfactorily  paid 
by  "  ^Y.  A.  Held,  the  indorser  was  liable  as  surety  and  not  as 
guarantor.  The  Court  said:  "The  word  security  has  an  estab- 
lished and  well  known  meaning  in  the  minds  of  most  people,  and 
indicates  an  obligation  to  stand  for  the  sum  absolutely,  unless 
discharged  by  the  supine  negligeiice  of  the  obligor  after  notice. 
It  is  in  broad  contrast  with  the  word  guaranty,  which  imports  a 
conditional  liability  if  due  steps  are  taken  against  the  principal,"  ' 
Where  the  indorsement  on  the  back  of  a  note  was,  "  I  transfer  the 
within  note  to  ^  (A)  and  guaranty  the  payment  of  the  same," 
it  was  held,  that  this  being  a  guaranty  in  terms,  could  not  be 
recovered  on  as  a  blank  indorsement.  "  There  is  no  implication 
of  a  promise  where  one  is  expressed.""  Where  the  payee  of  a 
note  indorsed  it  as  follows,  "  I  assign  the  within  note  to  *  (A) 
and  warrant  the  solvency  of  the  maker,"  it  was  held  he  was  not 
liable  as  a  general  indorser,  but  that  his  liability  was  restricted 
by  the  special  terms  of  his  indorsement.'  Where  strangers  to  a 
note,  at  the  time  it  was  made,  indorsed  it  as  follows,  "  We  guar- 
anty payment,"  it  was  held  they  were  guarantors  and  not  sure- 
ties, and  could  not  require  the  holder  to  sue  the  maker,  as  pro- 
vided by  statute  in  the  case  of  sureties.'' 

§  155.  Liability  of  indorsers  under  special  indorsements  and 
circumstances. — The  owner  of  a  negotiable  note  payable  to 
another  party  and  not  transferred  by  indorsement,  sold  and  de- 
livered it  for  value,  indorsing  upon  it  his  name,  and  in  addition 
the  words  "  Holden  thirty  days."  Held,  he  was  liable  to  pay 
the  note  on  condition  that  payment  was  demanded  of  the  maker, 
and  he  was  notified  of  the  maker's  default  within  the  thirty  days 
and  not  otherwise.^  A,  B  and  C  signed  a  note  payable  to  D, 
and  B  and  C  added  to  their  names  the  word  "surety."  E  in- 
dorsed the  note  in  blank,  and  it  was  discounted  by  P,  and  the 
money  paid  to  E,  In  the  absence  of  all  evidence  on  the  subject, 
it  was  held  that  E  was  the  surety  of  thje  other  parties  to  the  note, 

'  Marberger  v.  Pott,  16  Pa.  St.  9  per  ^  Turley  v.  Hodge,  3  Humph.  (Tenn.) 

Coulter,  J.  73. 

» Snevily  v.  Ekel,  1  Watts  &  Serg.  *  Sample  v.  Martin,  46  Ind.  226. 

(Pa.)  203.  5  Knight  v.  Knight,  16  New  Hamp. 

107. 


SPECIAL    CASES   AND    CIECUMSTANCES.  219 

and  that  Le  was  discharged  by  time  given  them.'  A  stranger  to 
a  note  indorsed  it  as  follows:  "I  assign  the  within  note  as  secu- 
rity to  Charles  C.  Jones."  Jones  was  the  payee  of  the  note,  and 
the  indorsement  was  made  subsequent  to  the  making  of  the  note. 
Held,  the  indorser  was  not  a  joint  maker,  and  could  not  be  sued 
jointly  with  the  maker,"  It  has  been  held  that  one  who  pur- 
chases an  unindorsed  negotiable  note  and  afterwards  writes  his 
name  with  the  word  "  liolden  "  on  its  back,  and  sells  it  for  value, 
is  chargeable  as  guarantor.^  A  wrote  on  the  back  of  a  note,  then 
two  years'past  due,  the  following:  ""We  waive  time  notice,  and 
protest  and  guaranty  the  payment  of  the  within."  Held,  such 
guarantor  did  not  assume  jjayment  of  the  debt  at  any  particular 
time,  and  the  circumstances  of  the  guaranty  might  be  alleged 
and  proved  to  explain  when  payment  was  to  be  made.'' 

§  156.  Liabillity  of  accommodation  parties  to  bills  of  ex- 
change— Special  cases. — It  has  been  held  that  the  indorsers  of  an 
accommodation  bill  of  exchange  are  not  joint  sureties,  but  are 
liable  to  each  other  in  the  order  of  their  becoming  parties.^  AVhere 
there  were  two  drawers  of  a  bill  of  exchange,  and  one  of  them 
vv^as  surety  only,  and  the  drawee  having  no  funds  of  the  principal 
in  his  hands,  accepted  and  paid  the  bill  with  knowledge  of  the 
fact  of  suretyship,  and  afterwards  sued  the  drawers  to  recover  the 
amount  paid,  it  was  held,  the  law  raised  an  implied  promise  to 
pay  on  the  part  of  the  principal,  but  there  could  be  no  recovery 
against  the  snretv,  even  though  he  had  signed  as  drawer,  with  the 
express  intention  of  becoming  bound  as  surety.  A  bill  of  ex- 
change never  imports  an  obligation  on  the  drawer  to  pay  the 
amount  to  the  drawee.  The  contract  was  not  sufficient  to  eifect- 
uate  the  intention  and  render  the  surety  liable.*  A  drew  a  bill 
of  exchange  on  B,  which  B  refused  to  accept  unless  A  procured 
some  responsible  party  to  sign  the  bill  with  him.  A  then  pro- 
cured C  to  sign  the  bill  with  him  as  drawer,  C  being  merely  a 
surety,  and  B  knowing  that  fact.  When  the  bill  became  due,  B 
paid  it  out  of  his  own  funds,  and  sued  A  and  C  for  indemnity. 
C  claimed  that  he  was  not  liable,  because,  the  bill  having  been 
paid  by  the  party  on  whom  it  was  drawn,  was  dead,  and  there 

'^  Bank  of  Orleans  I'.  Barry,  1  Denio,  ^Williams  v.   Bosson,  11   Ohio,  62. 

116.  Holding-  the  accommodation  acceptor 

-  Goode  V.  Jones,  9  Mo.  86G.  of  a  draft  to  be  a  principal,  see  Marsh 

3  Irish  r.  Cutter,  31  Me.  536.  v.  Low,  55  Ind.  271. 
*  Donley  v.  Bush,  44  Texas,  1.  « Wing  v.  Terry,  5  Hill  (N.Y.)  160. 


220       ACCOMMODATION    PARTIES    TO    NEGOTIABLE   INSTRUMENTS. 

could  be  no  recovery  on  it,  and  there  was  no  implied  assumpsit 
ao-ainst  him.  The  court  held  C  was  liable.  "  lie  must  be  taken 
to  have  put  his  name  on  the  bill  in  view  of  the  well  established 
principle  of  law  that  if  the  drawer  has  no  funds  in  the  hands  of 
the  drawee  to  meet  the  paj^meut  of  the  bill  at  maturity,  in  con- 
sequence of  which  the  latter  has  it  to  pay  vfith  his  own  funds,  a 
rii^ht  of  action  instantly  arises  in  his  favor,  not,  indeed,  upon  the 
bill,  but  in  assumpsit,  to  recover  the  money  thus  advanced,  founded 
upon  an  implied  promise.  This  is  one  of  the  known  fixed  legal  con- 
sequences resulting  from  the  relation  of  drawer.  *  Upon  gen- 
eral principles  of  law,  the  liability  of  a  surety  is  co-extensive 
with  that  of  the  principal,  and  it  is  wholly  unimportant  whether 
the  liability  arises  out  of  an  express  or  implied  understanding  on 
the  part  of  the  principal.  The  surety  is  as  much  bound  for  the 
implied  as  for  the  express  promises  and  undertakings  of  his  prin- 
cipal; in  this  respect  the  law  knows  no  distinction."*  If  has 
been  held  that  the  accommodation  acceptor  of  a  bill  of  exchange 
is  not  a  surety,  and  is  not  discharged  by  time  given  the  drawer. 
The  court  said:  "  He  who  accepts  a  bill,  whether  for  value  or  to 
serve  a  friend,  makes  himself  at  all  events  liable  as  acceptor,  and 
nothing  can  discharge  him  but  payment  or  release."  ^  A  drew  a 
draft  at  two  months,  addressed  to  E,  payable  to  the  order  of  B, 
and  concludino;  as  follows:  "  Charo-e  the  same  to  the  account  of 
your  obedient  servant."  It  was  signed  first  by  A,  and  then  by 
C,  the  word  "  surety"  being  added  to  C's  signature,  and  then  as 
follows:  D,  "surety  for  the  above  surety."  D  signed  the  draft 
without  C's  knowledge.  B  discounted  the  draft,  and  sent  it  toE, 
who  paid  it  without  funds,  under  an  agreement  to  that  effect  with 
A;  afterwards  D  paid  the  draft  to  E,  and  sued  C  for  indemnity. 
Held,  he  was  not  entitled  to  recover.  C  was  not  liable  by  the 
terms  of  the  draft  to  the  acceptors,  and  was  liable  to  nobody  on 
the  draft  unless  the  acceptors  failed  to  pay,  being  in  effect  their 
sureties.  Neither  was  he  liable  for  money  paid  to  his  use,  be- 
cause he  never  desired  the  acceptors  to  advance  any  money  for 
him.' 

^Nelson  v.  Richardson,  4    Sneed,  *Fentum  v.  Pocock,  5  Taunt.  192; 

(Tenn.)  307,  per  McKinney,   J.     To  Id.  1  Marshall,  14,  per  Mansfield,  C.  J. 

same  effect,  see  Dickerson  r.  Turner,  ^Wright  v.   Garlinghouse,  26  New 

15  Ind.  4;  Suydam  v.  Westfall,  2  De-  York,  539. 
■  nio,  205;  reversmg  Suydam  v.  West- 
fall,  4  Hill,  211. 


CHAPTER  YIIL 


OF    THE   NOTICE    AND    DEMAND    NECESSAKY   TO    CHAEGE   A 

GUARANTOR. 


Section. 

When  guarantor  must  be  noti- 
fied of  acceptance  of  guaranty. 
Reasons  therefor        .        .        .  157 

Writer  of  general  letter  of  credit 
entitled  to  notice  of  its  accept- 
ance        .....  158 

When  writer  of  guaranty,  address- 
ed to  a  particular  person,  must 
be  notified  of  its  acceptance      .  159 

When  guarantor  entitled  to  notice 
of  acceptance  of  guaranty. 
Special  cases         .         160,  161,  162 

When  guarantor  must  be  notified 
of  advances  made  under  guar- 
anty       .....  163 

When  guarantor  of  definite  lia- 
bility of  another  not  entitled  to 
notice  of  acceptance  of  guaranty  164 

When  guarantor  not  entitled  to 
notice  of  acceptance  of  guaran- 
ty.    Special  cases      .        .        .  165 

When  guarantor  not  entitled  to 
notice  of  advances  made  to 
principal         ....  166 

Cases  holding  guarantor  for  indef- 
inite amount,on  credit  to  be  giv- 
en, not  entitled  to  notice  of  ac- 
ceptance of  guaranty        .         .  167 


Section. 

When  guarantor  entitled  to  notice 
of  default  of  principal 

When  demand  of  payment  on 
principal  and  notice  of  his  de- 
fault necessary  to  charge  guar- 
antor         

When  demand  of  payment  on 
principal  and  notice  of  his  de- 
fault necessary  to  charge  guar- 
antor. Guarantor  of  promis- 
sory note,  etc.    . 

When  guarantor  bound  without 
notice  of  default  of  principal. 
Other  cases        .... 

When  no  notice  of  default  in  pay- 
ment by  principal  need  be  given 
to  guarantor  of  over-due  debt, 
of  lease,  and  of  negotiable  in- 
strument by  separate  contract 

If  principal  be  insolvent  when 
debt  becomes  due,  no  demand 
on  him  nor  notice  of  his  default 
to  guarantor  necessary 

What  is  the  reasonable  time  with- 
in which  the  notice  must  be 
given.     Pleading 

How  notice  may  be  proved.  What 
amounts  to  waiver  of  it    . 


168 


169 


170 


171 


172 


173 


174 


175 


§  157.  'When  guarantor  must  be  notified  of  acceptance  of 
guaranty — Reasons  therefor. —  A  question  often  arising  upon 
commercial  guaranties  is,  whether  in  order  to  charge  the  guar- 
antor it  is  necessary  that  he  be  notified  of  the  acceptance  of  the 
guaranty  by  the  person  acting  upon  it.  "When  the  guaranty  is  a 
letter  of  credit,  or  is  an  offer  to  become  responsible  for  a  credit 
which  may  or  may  not  be  given  to  another,  at  the  option  of  the 

(221) 


222  NOTICE    AND   DEMAND. 

party  to  wliom  the  application  for  credit  is  made,  the  great  weight 
of  authority  is  that  the  guarantor  must  within  a  reasonable  time 
be  notified  of  the  acceptance  of  the  guaranty.'  The  most  satis- 
factory reasons  exist  for  these  decisions.  It  is  of  the  highest  im- 
portance to  the  person  thus  oifering  his  credit,  that  he  should 
know  he  is  to  be  looked  to  for  payment.  Knowing  that  fact,  he 
can  regulate  his  dealings  with  his  principal  accordingly.  He 
will  have  an  opportunity  to  secure  himself  and  guard  against 
loss.  Concerning  this  subject,  it  has  been  said  :  "  It  would,  in- 
deed, be  an  extraordinary  departure  from  that  exactness  and  pre- 
cision which  peculiarly  distinguish  commercial  transactions, 
wliich  is  an  important  principle  in  the  law  and  usage  of 
merchants,  if  a  merchant  should  act  on  a  letter  of  this 
character,  and  hold  the  writer  responsible  without  giving 
notice  to  him  that  he  had  acted  on  it."  ^  Another  reason  much 
relied  upon  by  the  courts,  is  that  the  transaction  only  amounts  to 
an  ofter  to  gauranty  until  the  party  making  the  offer  is  notified 
of  its  acceptance,  when  the  minds  of  the  parties  meet  and  the 
contract  is  completed.  Where  the  transaction  is  admitted  to 
amount  only  to  an  offer  to  guaranty,  it  is  universally  held  that 
in  order  to  charge  the  party  making  the  offer,  he  must  within  a 
reasonable  time  be  notified  that  his  offer  is  accepted.  The  courts, 
however,  differ  more  or  less  as  to  what  is  a  guaranty,  and  what  is 
an  offer  to  guaranty. 

§  158.  Writer  of  general  letter  of  credit  entitled  to  notice  of 
its  acceptance. — The  rule  that  a  guarantor  of  future  credits  is 
entitled  to  notice,  applies  with  special  force  to  general  letters  of 

'  This  is  the  firmly  settled  doctrine  v.  French,?  Greenl.  (Me.)  115;  Kellogg 

of  the   Supreme  Court  of  the  United  v.  Stockton,  29  Pa.  St.  460;  Bank  of 

States, Edmondston U.Drake,  5  Peters,  Illinois  v.   Sloo,    16  La.  (Curry)   539; 

624;  Douglass  v.  Reynolds,  7  Peters,  Menard  v.   Scudder,  7  La.  An.  385; 

113;Leet).  Dick,  10  Peters,482;  Adams  Kinchelse  i?.  Holmes,  7  B.  Mon.  (Ky.) 

V.  Jones,  12  Peters,  207.   These  decis-  5;  Allen  v.  Pike,  3  Cush.  238;  Mussey 

ions  have  been,  with  few  exceptions,  v.  Rayner,  22  Pick.  223;   Rankin  v. 

followed  and  approved  in  the  United  Childs,  9  Mo.665;  Mayfield  v.  Wheeler, 

States;  Lawton  v.  Maner,  9  Rich.  Law  37  Texas,  256;   McCollum  v.  Cushing, 

(So.Car.)  335;  Sollee  v.  Meugy,  1  Bailey  22  Ark.  540;  Howe  v.  Nickels,  22  Me. 

Law(So.Car.)620;Claflinv.Briant,58  175;   Geiger   v.  Clark,    13  Cal.  579; 

Ga.  414;  Bums  tJ.  Semmes,4CranchCir.  Cook  v.  Ome,  37  111.  186. 
Ct.  702;  Shewellr.  Knox,  1  Dev.  Law  ^Edmondston    v.    Drake,  5  Peters, 

(Nor.  Car.)  404;  Taylor  v.  McClung's  624,  per  Marshall,  C.  J. 
■  Ex'rs.  2  Houston  (Del.)  24;  Tuckerman 


GENERAL    LETTER    OF    CREDIT.  223 

credit:  "For  it  might  otherwise  be  impracticable  for  the  guaran- 
tor to  know  to  whom  and  under  what  circumstances  the  guaranty 
attached,  and  to  what  period  it  miglit  be  protracted."  ^  A  party 
gave  a  letter  of  credit  to  another,  agreeing  to  guaranty  payment 
for  purchases  made  by  that  other,  to  a  certain  amount.  The 
party  purcliased  goods  on  the  strength  of  the  guaranty,  but  no 
notice  was  given  the  guarantor:  Held,  he  was  not  liable.  The 
court  said:  "A  party  giving  a  letter  of  guaranty,  has  a  right  to 
know  whether  it  is  accejDted,  and  whether  the  person  to  whom  it 
is  addressed,  means  to  give  credit  on  the  footing  of  it  or  not.  |^t 
may  be  most  material,  not  only  as  to  his  responsibility,  but  as  to 
his  future  rights  and  proceedings.  It  may  regulate,  in  a  great 
measure,  his  course  of  conduct  and  Jiis  exercise  of  vigilance  in  re- 
gard to  the  party  in  whose  favor  it  is  given."  "^  A  wrote  to  B,  that 
if  he  would  assume  the  debt  of  C,  and  procure  the  discharge  of 
C's  bail,  he,  A,  would  execute  his  note  for  501.  B  complied  with 
the  request,  but  did  not  notify  A  of  the  fact:  Held,  A  was  not 
liable.  The  court  said:  "When  a  proposition  is  made  by  a  man 
for  a  thing  to  be  done  for  himself,  he  must  know  when  done,  that 
it  is  done  on  his  proposition.  But  when  he  proposes  his  respon- 
sibility for  a  thing  to  be  done  for  another,  he  may  not  know  that 
it  is  done,  or  even  if  he  does,  he  will  not  know  whether  it  was  done 
on  his  proposition,  or  on  the  sole  credit  of  the  third  person,  or  on 
some  otlier  security.  *  If  he  is  to  stand  as  surety,  he  must 
have  the  right  to  keep  watch  of  his  principal  and  his  circum- 
stances." ^  A  gave  B  a  letter  of  credit  addressed  to  C  in  a  distant 
city,  and  agreeing  to  guaranty  any  purchases  which  might  be 
made  by  B  of  C,  or  any  person  to  whom  B  might  be  introduced 
by  C.  Several  parties  sold  goods  on  the  strength  of  the  guaranty, 
but  no  notice  was  given  to  A:  Held,  A  was  not  bound.*  A 
writing  was  as  follows:  "The  bearer,  *  wishing  to  travel 
wnth  my  son,  please  furnish  with  a  suitable  stock,  and  all 
will  be  right:"  Held,  an  offer  to  guaranty,  and  that  the 
writer  was  not  liable,  unless  the  proposition  was  accepted,  and 

^  Per  Story,  J.,  in  Adams  ?'.  Jones,  ^Kinchelse  v.   Holmes,  7  B.   Mon. 

12  Peters,  207.  (Ky.)  5.     To  the  same  eHect,  when  the 

■^  McCollum  V.  Gushing,  22  Ark.  540,  guaranty  was   a  continuing-  one,  ad- 

per  English,  C.  J.  dressed  to  no  one  in  particular,  see 

3  Oaks  V.  Weller,  13  Vt.   106,  per  Menard  v.  Scudder,  7  La.  An.  385. 
Collaraer,  J.    See,  also,  Peck  v.  Bar- 
ney, 13  Vt.  93. 


224  NOTICE   AND   DEMAND. 

he  notified  of  such  acceptance.  The  court  said:  "A  mere 
offer  not  accepted,  is  not  a  contract;  and  a  mere  mental  ac- 
ceptance of  a  proposition  not  communicated  to  the  party  to  be 
charo-ed,  is  not  an  acceptance  at  all  in  the  eje  of  the  law.  It 
is  important  to  the  interests  of  the  business  community  that  every 
one  should  know  the  extent  of  his  liabilities,  in  order  that  he 
may  take  the  proper  measures  to  meet  them."  ^  A  banker  being 
in  failing  circumstances  and  anticipating  a  run  on  his  bank,  certain 
persons  signed  and  published  an  instrument  as  follows:  ''  We,  the 
undersigned,  agree  to  guaranty  the  depositors  of  Wm.  E.  Culver 
in  the  payment  in  full  of  their  demands  against  said  Culver,  on 
account  of  money  deposited  with  him.  We  have  entire  confi- 
dence in  his  ability  to  meet  all  demands  on  him."  A  depositor 
brought  suit  on  this  guaranty,  alleging  that  he  had  a  large 
amount  of  money  in  the  bank  when  the  guaranty  was  signed,  and 
was  about  to  withdraw  it,  but  relying  on  the  guaranty  he  per- 
mitted it  to  remain.  Held,  that  under  this  state  of  facts  such 
depositor  must  aver  aud  prove  notice  to  the  guarantors  of  the  ac- 
ceptance of  the  guaranty,  and  a  general  averment  of  notice 
would  not  be  sufficient.  The  court  said  "  Where  the  offer  is  to 
guaranty  a  debt  for  which  another  is  primarily  liable  in  consid- 
eration of  some  act  to  be  performed  by  the  creditor,  mere  per- 
formance of  the  act  is  not  sufficient  to  fix  the  liability  of 
the  guarantor,  but  the  creditor  must  notify  the  guarantor  of  his 
acceptance  of  the  offer,  or  of  his  intention  to  act  upon  it.  * 
The  rule  is  that  a  person  thus  proposing  to  become  surety  for 
another  is  not  bound  to  inquire  as  to  the  acceptance  of  his  pro- 
posal, "  but  the  creditor  must  show  reasonable  notice."  ^ 

§  159.  "When  •writer  of  guaranty,  addressed  to  a  particular  per- 
son, must  be  notified  of  its  acceptance. — The  rule  is  generally 
held  to  be  the  same  where  the  writing  is  addressed  to  a  partic- 
ular person  and  is  acted  on  by  him.  Thus,  where  a  guaranty  was 
as  follows:  "Gentlemen:  *  (A  and  B)  wish  to  draw  on  you  at 
six  and  eight  months ;  you  will  please  accept  their  draft  for  2,000 
dollars,  and  I  do  hereby  guaranty  the  punctual  payment  of  it," 
it  was  held  the  guarantor  must  be  notified  within  a  reasonable 
time  of  the  acceptance  of  the  draft.'     A  guaranty  was  as  follows: 

'  Kellogg  V.    Stockton,   29  Pa.  St.  « Steadman  v.  Guthrie,  4  Met.  (Ky.) 

460,  per  Lewis,  C.  J.  147. 

»Lee  V.  Dick,  10  Peters,  482. 


GUARANTY   ADDKESSED    TO    A    PARTICULAR   PERSON.  225 

"  I  would  recommend  *  (A)  and  go  security  for  him  to  any  rea- 
sonable amount,  so  you  can  fill  liis  orders  and  feel  3'ourself  secure 
as  when  I  was  doing  business  with  you."  Held,  the  guarantor 
vras  not  liable  unless  notified  of  the  acceptance  of  the  guaranty. 
The  court  said  it  made  no  difierence  if  the  guarantor  had  before 
verbally  requested  the  creditor  to  give  the  credit,  and  proceeded: 
"  It  is  difficult  to  imagine  how  precedent  request  alone  can  sup- 
ply the  place  of  subsequent  notice,  since  after  request  made  and 
proffer  of  guaranty,  the  merchant  may  refuse  the  credit  or  ad- 
vance craved,  and  without  notice  the  surety  cannot  know  whether 
he  has  or  not." '  A  applied  to  H  to  purchase  lumber  to  build  a 
ferry  boat,  and  E.  refused  to  credit  him  without  security.  A  men- 
tioned the  name  of  C  as  surety,  and  his  name  was  acceptable.  A 
few  days  afterwards  A  presented  an  order  for  the  lumber  in  C's 
handwriting,  at  the  foot  of  which  was  written  "  Messrs.  Kankins 
(R)  will  furnish  the  above  bill  as  soon  as  possible,  and  I  will  order 
what  more  I  may  want  for  my  boat  in  a  short  time.  James 
McCourtney  (A).  I  hereby  guarantee  the  payment  of  the  above 
bill,  January  29th,  1842.  Vm.  Cliilds"  (C).  The  lumber  was 
afterwards  sold.  Held,  C  must  be  notified  of  the  acceptance  of 
the  guaranty  in  order  to  charge  him.*  The  same  thing  was  held 
where  the  defendants  wrote  to  the  plaintiffs  as  follows:  "We  take 
pleasure  in  commending  Mr.  C.  to  you  as  a  gentleman 
worthy  of  your  confidence,  and  if  he  should  have  any  dealing 
with  3'ou  we  hereby  bind  ourselves  to  make  good  and  pay  any 
amount  he  may  be  indebted  to  you  on  settlement,  not  ex 
ceeding  $1,500.  This  guaranty  to  remain  in  full  force  until 
revoked  by  us."^  Where  the  writing  was  as  follows  :  "  For  value 
received,  I,  Moses  Dudley,  of  Chesterfield,  ^ew  Hampshire, 
guaranty  to  pay  James  M.  Beebe  &  Co.,  of  Boston,  for  two 
thousand  dollars'  worth  of  goods  delivered  to  Charles  P.  Dudley, 
of  Lowell,  when  he  ma}'  call  for  them,"  it  was  held  that  as  the 
engagement  related  to  goods  to  be  delivered,  and  no  time  was 
fixed  within  which  the  delivery  was  to  be  made,  it  was  a  collateral 
agreement  or  guaranty,  and  not  an  absolute  undertaking,  and  that 
the  guarantor  must  in  order  to  charge  him,  be  notified  within  a 

^Kay  V.   Allen,  9   Pa.    St.  320,  per  s^ardlaw    v.   Harrison,    11    Rich. 

Bell,  J.  Law.  (So.  Car.)  626. 

*  Rankin  r.  Childs,  9  Mo.  665. 

15 


226  NOTICE    AND   DEMAND. 

reasonable  time  of  sales  made  under  it.'  "Wliere  the  maker  of  a 
continuing  guaranty  Lad  no  notice  of  its  acceptance  for  three 
years,  he  was  held  not  liable.  In  an  able  opinion  the  court  sum- 
marized the  law  on  this  subject'as  follows:  "  In  cases  of  a  writ- 
ten guaranty  for  a  debt  yet  to  be  created,  and  uncertain  in  its 
amount,  the  guarantor  should  have  notice  in  a  reasonable  time 
that  the  guaranty  is  accepted,  and  that  credit  has  been  given  on 
the  faith  of  it.  *  The  distinction  is  between  an  offer  to  guaranty 
a  debt  about  to  be  created,  the  amount  of  which  the  party  mak- 
ing the  offer  does  not  know,  and  it  is  uncertain  whether  the  offer 
will  be  accepted  so  that  he  may  be  ultimately  liable,  and  the  case 
of  an  absolute  guaranty,  the  terms  of  which  are  definite  as  to  its 
extent  and  amount.  In  the  latter  case,  no  notice  is  necessary  to 
the  guarantor,  whereas  in  the  former  case  the  contract  is  not  com- 
pleted until  the  offer  is  accepted."" 

§  160.  "When  guarantor  entitled  to  notice  of  acceptance  of 
guaranty — Special  cases. — If  a  promise  be  made  to  pay  the  debt 
of  another,  provided  the  creditor  will  take  the  debtor's  note,  pay- 
able at  a  distant  day,  the  promisor  must  have  notice  that  the 
proposition  is  acceded  to  and  the  note  accepted,  or  he  will  not 
be  liable  on  his  guaranty.^  A  guaranty  was  as  follows  :  "F  in- 
forms me  that  you  are  about  publishing  an  arithmetic  for  him. 
I  have  no  objection  to  be  answerable  as  far  as  601.:  for  my  refer- 
ence, apply  to  B."  (Signed)  G.  T.  The  guaranty  was  written 
by  B  and  signed  by  G.  T.,  and  then  B  wrote  at  the  bottom, 

"  "Witness  to  G.  T .     B."     It  was  was  forwarded  by  B  to  the 

plaintiffs,  who  never  communicated  their  acceptance  of  it  to  G, 
T.  Held,  G.  T.  was  not  liable.  The  Court  said  :  "  The  trans- 
action cannot  be  tortured  into  a  consummate  and  perfect  con- 
tract. The  contract  was  not  complete  till  notice;  and  with  re- 
gard to  the  agency  of  Brooke  (B),  there  is  nothing  to  show  that 
the  plaintiffs  might  not  have  been  dissatisfied  with  his  opinion  of 
the  defendant's  solvency.  *  The  subsecjuent  words  render  the 
point  quite  clear  that  the  defendant  only  intended  to  be  bound 
by  the  instrument  in  case  upon  inquiry  the  plaintiffs  should  be 
satisfied  with  regard  to  his  solvency."^     A  wrote  to  B  that  C  de- 

'  Beebe  v.  Dudley,  26  New  Hamp.  » Patterson  v.  Reed,  7  Watts  &  Serg. 

249.  (Pa.)  144. 

"Allen  V.   Pike,   3   Cush.  238;   per  "Per    Lord    Abinger,  C  B.,     and 

"Wilde,  J.  Parke,   B.,   in  Mozley   v.  Tinkler,    1 


WHEN   NOTICE   OF   ACCEPTANCE    NECESSAKY,  227 

sired  the  loan  of  $15,000,  and  if  B  would  loan  it  to  C  he  would 
be  responsible  for  that  amount,  and  would  leave  as  collateral  for 
the  loan,  a  mortgage  for  $15,000,  then  in  B's  hands,  and  that  if 
B  did  not  feel  like  loaning  the  amount  he  would  assist  C  to  get 
it  elsewhere.  Held,  this  was  a  guaranty,  or  an  offer  to  guaranty, 
on  the  part  of  A,-  and  in  order  to  render  him  liable  for  any  ad- 
vances made,  he  must  have  notice  of  accej)tance  within  a  reason- 
able time.  The  Court  said:  "There  is  a  marked  difference  be- 
tween an  overture,  or  proposition  to  guaranty,  and  a  simple  con- 
tract of  suretyship.  The  one  is  a  contingent  liability.  The  oth- 
er is  ah  actual  undertaking."  *  A  wrote  a  letter  to  the  plain- 
tiffs, promising  to  accept  and  pay  bills  to  the  extent  of  $50,000, 
drawn  .on  them  by  B,  of  Illinois,  and  discounted  by  the  plain- 
tiffs. C,  by  an  indorsement  on  the  letter,  guarantied  the  pay- 
ment of  such  bills  as  might  be  drawn  in  pursuance  thereof. 
Bills  to  the  extent  of  $37,000  were  drawn,  not  paid,  and  pro- 
tested. ISTo  notice  was  given  to  the  guarantor  of  the  acceptance 
of  the  guaranty,  or  the  advances  made  thereon,  until  after  the 
dishonor  of  the  bills.  Held,  the  guarantor  was  entitled  to  notice 
of  the  acceptance  of  the  guaranty,  and  of  the  advances  made  un- 
der it,  and  that  he  was  not  liable,  for  want  of  snch  notice.'^  A 
party  being  about  to  purchase  goods,  exhibited  to  the  seller  a  letter 
from  a  third  party,  addressed  to  the  purchaser,  containing,  among 
other  things,  the  following:  "For  the  amount  of  such  goods  as 
you  wish  to  purchase  on  six  months'  credit,  not  exceeding  one 
thousand  dollars,  I  will  guaranty  at  two  and  a  half  per 
cent."  Upon  the  faith  of  this  he  obtained  goods,  giving 
therefor  his  promissory  note,  payable  in  six  months,  with  grace. 
Held,  this  was  not  an  authority  to  the  purchaser  to  bind  the 
writer  at  all  events,  nor  was  the  purchaser  thereby  constituted  his 
agent  for  the  purpose  of  receiving  notice  of  its  acceptance,  but 
that  it  was  a  case  of  collateral  guaranty,  in  which  seasonable  no- 
tice of  acceptance  was  necessary  to  charge  the  guarantor.^  It  has 
been  held  that  in  an  action  for  breach  of  an  agreement,  which  is 
in  the  nature  of  a  guaranty,  if  the  circumstances  alleged  as  the 
foundation  of  the  defendant's  liability  are  more  properly  within  the 

Crorap.    Mees.    &    Ros.   692;    Id.    5  ''Bank  of  Illinois  v.  Sloo,    16  La. 

Tyrwh.  416;  Id.  1  Gale,  11.  (Cun-y)  539. 

'  Central  Savings  Bank  v.  Shine,  48  ^  Bradley  v.   Gary,  8  Greenl.  (Me.) 

Mo.  456,  per  Wagner,  J.  234. 


228  NOTICE    AND   DEMAND. 

knowledge  of  tlie  plaintiff  than  tlic   defendant,  notice  thereof 
should  be  averred  in  the  declaration,  and  proved  on  the  trial." 

^  IGl.  When  guarantor  entitled  to  notice  of  acceptance  of 
guaranty — Special  cases. — Where  a  party  gave  a  letter  of  credit 
to  another,  addressed  to  certain  merchants,  stating:  "  Should  you 
he  disposed  to  furnish  him  with  such  goods  as  he  may  call  for, 
from  300  to  500  dollars'  worth,  I  will  hold  myself  accountable  for 
the  payment,  should  he  not  pay  as  you  and  he  shall  agree,"  it 
was  held  to  be  a  collateral  undertaking,  and  that  the  guarantor 
was  entitled  to  notice  of  the  acceptance  of  the  guarant}^  and  the 
amount  of  credit  given.^  Where  an  offer  of  guaranty  of  rent  for 
a  year  was  made  in  writing,  accompanied  by  a  request  in  writing 
for  an  answer,  it  was  held  that  the  party  making  the  offer  must 
be  notified  of  its  acceptance,  in  order  to  charge  him.^  Part  of  a 
letter  written  by  A  to  B,  concerning  a  debt  already  contracted  by 
third  parties,  was  as  follows:  "I  wish  you  to  show  him  (James 
Hale)  some  lenity,  as  much  as  you  think  proper  for  the  collection 
of  it  from  Mr.  Lovejoy,  and  I  W'ill,  if  you  please,  stand  responsi- 
ble for  the  payment  of  it  at  the  time  you  and  James  may  agree 
on."  Held,  this  was  an  offer  to  guaranty,  and  not  a  completed 
contract;  that  the  writer  of  the  letter  was  entitled  to  notice  of 
the  acceptance  of  his  offer  within  a  reasonable  time,  and  not  hav- 
ing received  any  such  notice  for  over  two  j^ears,  he  was  not  bound. ^ 
A  party  addressed  to  certain  merchants  a  note,  stating  that  he 
would  be  responsible  at  the  end  of  three  years  for  goods  sold  to 
F,  to  the  amount  of  $1,000.  The  merchants  sold  F  goods  on  the 
strength  of  the  guaranty  to  the  amount  of  about  $1,000,  but  did 
not  notify  the  writer  of  the  note  of  the  acceptance  of  the  guar- 
anty, nor  of  the  amount  sold,  till  two  years  and  eight  months  af- 
ter the  transaction.  Held,  the  writer  of  the  note  was  not  liable. 
The  court  said:  "Kot  only  is  this  notice  essential  to  that  exact- 
ness and  precision,  as  well  as  to  the  good  faith  and  confidence 
which  should  characterize  mercantile  contracts,  but  it  is  equally 
demanded  by  a  regard  to  the  rights  and  interests  of  the  defend- 
ant; and  the  most  unjust  results  would  follow  were  a  contrary 

'  Lewis  V.  Bradley,  2  Ired.  Law  (Nor.  ^  Beekman  v.   Hale,  17  Johns.  134. 

Car.)  303.  To  the  effect  that  when  the  letter  is  an 

*Rapelye  v.  Bailey,  3  Ct.  488.  offer  to  guaranty,  the  writer  must  be 

'Valloton  V.  Gardner,  R.  M.  Charl-  notified  of  its  acceptance;  see  Fellows 

ton  (Ga.)  86;    to   similar  effect,   see  v.  Prentiss,  3  Denio,  512. 

Thomas  v.  Davis,  14  Pick.  353. 


WHEN    NOTICE    OF    ACCEPTANCE    NECESSARY.  229 

doctrine  to  prevail.  lie  ouglit  to  have  the  notice  to  enable  him 
to  take  such  prudential  measures  as  would  guard  him  against 
eventual  loss;  to  exercise  a  watchful  supervision  over  the  pro- 
ceedings of  him  for  whom  he  became  responsible;  to  make  pay- 
ment, if  necessary,  and  to  secure  himself  by  suit." '  A  letter, 
after  introducing  a  party,  proceeded  as  follows:  "Any  favor  3'ou 
may  show  in  introducing  him  to  the  difterent  houses,  so  that  he 
may  be  able  to  fill  his  orders,  will  be  highly  appreciated  by  him, 
and  will  be  indorsed  by  me,  if  necessary,  for  the  amount  of  his 
purchases."  Goods  were  sold  on  this  letter,  for  which  the  pur- 
chaser gave  his  individual  note,  due  in  six  months.  'No  notice 
was  given  the  writer  of  the  letter  till  after  the  note  was  due. 
Held,  he  was  not  liable;  his  agreement  being  to  guaranty  if 
necessary;  and  he  should  have  been  promptly  notified  of  the  sale, 
or  requested  to  guaranty  the  note.* 

§  162.  When  guarantor  entitled  to  notice  of  acceptance  of 
guaranty — Special  cases. — Where  I  gave  a  writing  to  P  provid- 
ing that  he  would  indorse  any  bill  or  bills  which  S  might  give  to 
P  in  part  payment  of  an  order  for  certain  goods  then  executing 
for  him,  I  to  allow  51.  per  cent,  on  the  amount  of  the  bills  for 
the  guaranty;  and  in  part  payment  for  the  goods  S  gave  P  a  bill 
at  eighteen  months,  which  the  latter  kept  for  seventeen  months 
and  ten  days,  and  then  finding  that  S  was  insolvent,  applied  for 
the  first  time  to  I  for  his  indorsement,  tendering  the  amount  of 
commission,  it  was  held  I  was  not  liable.  The  writing  was  a 
simple  offer  to  guaranty  upon  being  paid  a  consideration.  If  P 
intended  to  accept  the  offer  he  should  have  done  so  within  a 
reasonable  time,  and  paid  the  commission.^  A  wrote  to  B  recom- 
mending certain  parties  and  giving  certain  explanations,  and 
added  at  the  end  of  his  letter:  "If  in  addition  to  the  foreo-oino- 
explanation  you  shall  require  any  individual  guaranty,  I  shall 
have  no  objection  to  give  you  that  pledge."  Held,  the  letter  was 
not  a  guaranty,  but  a  statement  that  if  an  application  was  made, 
a  guaranty  would  be  given,  and  no  guaranty  having  been  re- 
quired for  more  than  two  years,  the  inference  w^as  that  the  credit 
was  given  solely  to  the  principal,  and  that  the  offer  to  guaranty 
was  not  accepted."     One  H  requiring  some  sj)irits  for  the  pur- 

'  Craft  V.  Isbam,   13  Ct.  28,  per  Bis-  ^  Payne  v.  Tves,   3  Dow.  &  Ryl,  664. 

sell,  J.  ■*  Stafford  v.  Low,  16  Johns.  67. 

^  Mayfield  v.  Wheeler,  37  Texas,  256. 


230  NOTICE    AND    DEMAND. 

poses  of  his  trade,  received  from  the  defendant,  a  friend  of  liis, 
a  letter  of  introduction  to  the  plaintiff,  a  distiller,  to  "whom  the 
defendant  was  well  known,  but  II  an  entire  stranger.  There 
had  not  been  anj  previous  application  by  H  to  the  plaintitf  for 
credit.  The  letter  was  as  follows:  "The  bearer  is  Mr.  Joseph 
Ilugill,  a  friend  of  mine,  who  wishes  to  ])urchase  some  proof 
si^irits,  which  he  hears  that  you  manufacture.  If  you  can  ar- 
)-ange  matters  to  your  mutual  satisfaction,  I  am  sure  that  Mr. 
Ilugill  will  prove  a  reliable  person  to  deal  with.  I  will  myself, 
with  pleasure,  become  security  for  anything  he  may  be  disposed 
to  give  an  order  for."  Held,  this  was  not  a  guaranty,  but  an  of- 
fer to  guaranty,  and  in  order  to  charge  the  writer  of  the  letter  it 
was  necessary  to  notify  him  of  the  acceptance  of  the  offer.'  A 
guaranty  was  as  follows:  "  Wm.  Mitchell,  Jr.,  will  probably  call 
on  you  to  purchase  your  horse,  and  should  you  conclude  to  sell, 
you  can  do  so.  Take  his  note,  and  I  will  be  responsible  for  the 
payment  on  his  return."  Held,  that  in  order  to  hold  the  guar- 
antor he  must  be  notified  of  the  sale.  The  court  said:  "In  an  ac- 
tion upon  a  guarant^;^',  unless  the  instrument  given  in  evidence  as 
such,  purports  to  be  an  absolute  and  conclusive  engagement,  the 
plaintiff  must  show  that  he  gave  notice  to  the  defendant  that  he 
accepted  it  as  such."  ^  The  plaintiff  having  declined  to  furnish 
goods  to  A's  house  on  his  credit  alone,  a  writing  was  given  to  A 
by  the  defendant  to  this  effect:  "I  understand  A  &  Co.  have 
given  you  an  order  for  rigging,  &c.  I  can  assure  you,  from  what 
I  know  of  A's  honor  and  probity,  you  will  be  perfectly  safe  in 
crediting  them  to  that  amount;  indeed  I  have  no  objection  to 
guaranty  you  against  any  loss  from  giving  them  this  credit." 
This  waiting  was  handed  over  by  A  to  the  i^laintiffs,  together 
with  a  guaranty  from  another  house,  which  they  required  in  ad- 
dition, and  the  goods  were  thereupon  furnished,  but  the  defendant 
was  not  notified  that  they  were  furnished  nor  that  he  was  relied 
upon  for  payment.  Held,  the  defendant  was  not  liable.  The 
writing  was  not  a  perfect  and  conclusive  guaranty,  but  only  a 
proposition  tending  to  a  guaranty.' 

^  163.      When  guarantor    must   be   notified  of  advances   made 
under  guaranty. — "When  the  guaranty  relates  only  to  a  single 

^  Kastnerw.  Winstanley,  20  Up.  Can.  *  Mclver  v.  Richardson,  1  Maule  & 

C.P.R.  101.  Sel.557. 

*  Smith  V.  Anthony,  5  Mo.  504. 


WHEN    NOTICE    OF   ADVANCES    NECESSARY.  231 

transaction,  notice  of  its  accej^tance  usually  conveys  to  the  guar- 
antor knowledge  of  tlie  extent  of  liis  liability;  and  in  such  case 
no  other  notice  is  necessary.  Where,  however,  the  guaranty  is  a 
continuing  one,  notice  of  its  acceptance  does  not  have  this  effect. 
In  such  case  the  same  reasons  which  require  notice  of  the  accept- 
ance of  the  guaranty,  also  require  notice  of  the  advances  made 
under  it.  It  has  accordingly  been  held,  and  is  well  established, 
that  in  the  case  of  a  continuing  guaranty,  not  only  must  notice 
of  acceptance  be  given,  but  also  \^ithin  a  reasonable  time  after  all 
the  transactions  are  closed,  the  guarantor  must  be  notified  of  the 
amount  due  under  the  guaranty.'  As  to  this  matter,  the  follow- 
ing has  been  said  by  an  eminent  judge:  "All  such  cases  must 
stand  upon  their  own  circumstances,  and  do  not  seem  to  furnish 
just  grounds  for  a  general  rule."  ^  A  notice  of  the  amount  due 
after  all  the  transactions  are  closed,  is  sufficient,  and  it  is  not 
necessary  to  give  notice  of  each  successive  sale  as  it  is  made.^ 
The  maker  of  a  continuing  guaranty  was  duly  notified  of  its  ac- 
ceptance. Goods  were  sold  under  it,  but  no  notice  of  the  amount 
so  sold,  nor  of  default  in  payment  by  the  principal  was  given  till 
two  years  after  the  close  of  the  transaction,  when  the  principal 
had  become  insolvent:  Held,  the  guarantor  was  not  liable.  The 
court  said:  "  Good  faith,  we  think,  requires  that  when  a  party 
gives  credit  to  another  on  the  responsibility  or  undertaking  of  a 
tliird  person,  he  should  give  immediate  notice  to  the  latter  of  the 
extent  of  the  credit,  especially  when,  as  in  the  case  under  consid- 
eration, a  continuing  guaranty  is  given  without  limitation  of  the 
time  of  its  continuance,  or  of  the  amount  of  credit  for  which  the 
guarantor  might  be  held  responsible."*  A,  B  and  C  were  in 
partnership.  D  gave  A  and  B  a  guaranty  to  be  responsible  for 
one-half  of  any  loss  which  they  might  sutler  in  the  business  with 
C.  The  partnership  having  been  dissolved,  it  was  held  that  D 
was  not  liable  on  his  guaranty,  unless  he  had  been  notified  with- 
in a  reasonable  time  after  the  dissolution  of  the  partnership,  of 

'  1  Doug-lass  V.  Reynolds,  7  Peters,  cock  r.  Bryant,  12  Pick.  133;  Thomas 

113;  Montgomery  v.  Kellogg,  43  Miss.  v.  Davis,  14  Pick.  353. 

486;  Howe  v.   Nickels,   22  Me.  175;  =>  Wildes  «.  Savage,  1  Story,  22,  per 

Wildes  V.  Savage,  1  Story,  22;  Cre-  Story,  J. 

mer  t?.  Higginson,  1  Mason,  323;  Nor-  ^Lowe  v.  Beckwitli,    14  B.Monroe, 

ton  V.  Eastman,  4  Greenl.  (Me.)  521;  (Ky.)  150. 

Killian  v.  Ashley,    24Ark.511;   Bab-  ■*  Clark    v.     Remington,     11     Met. 

(Mass.)  361,  per  Wilde,  J. 


232  NOTICE    AND    DEMAND. 

any  loss  witlilii  the  scope  of  bis  undertaking.  The  guaranty  was 
far  ail  uncertain  sum,  and  its  duration  was  not  fixed,  and  there- 
fore the  amount  to  be  paid,  and  when  it  was  due,  could  only  be 
ascei-tained  by  winding  up  the  concern,  which  was  a  matter  over 
wliicli  the  guarantor  had  no  control,  and  he  was  consequently  en- 
titled to  notice.' 

§  164.  When  guarantor  of  definite  liability  of  another  not  en- 
titled to  notice  of  acceptance  of  guaranty. — When  one  directly 
binds  himself  to  be  responsible  for  another's  contract  already 
made,  and  of  which  he  has  knowledge  when  he  signs,  no  notice 
of  the  acceptance  of  the  guaranty  is  necessary.  This  principle 
lias  been  applied  to  a  case  where  a  party  guarantied  the  payment 
for  sewing  machines  to  be  furnished  another  under  an  existing 
contract  of  which  he  knew,  and  it  was  held  that  no  notice  of  ac- 
ceptance was  necessary  to  charge  the  guarantor.*  The  same  thing 
was  held  where  the  guaranty  of  a  lease  was  made  at  the  same  time 
the  lease  was  executed,  and  was  a  part  of  the  consideration  for  the 
execution  of  the  lease.^  Where  a  party  guarantied  the  payment 
of  a  particular  sum  at  a  given  time,  the  court  held  that  no  notice 
to  him  was  necessary,  and  said:  "It  is  not  an  indefinite  promise, 
either  as  to  amount  or  time  of  performance.  The  party  knew 
what  he  had  contracted  to  pay,  and  when  it  was  to  be  paid,  and  it 
was  his  business  to  see  that  the  amount  was  paid."  ^  A  party  exe- 
cuted a  guaranty  on  the  back  of  a  note  in  the  following  v/ords  : 
''  I  hereby  guaranty  the  payment  of  this  note  within  four  years 
from  this  date."  Held,  the  guaranty  was  absolute  that  the  note 
should  be  paid  within  four  years,  "  and  demand  and  notice  were 
not  necessary  in  this  any  more  than  in  all  other  cases  of  absolute 
and  unconditional  engao-ements."  ^  Ahavino-bouo-ht  a  cow  at  an 
administrator's  sale,  and  the  administrator  having  refused  to  de- 
liver her  on  A's  credit  alone,  A  gave  his  note  for  the  price  and 
B  wrote  to  the  administrator  as  follows:  "  I,  the  undersigned,  will 
sign  the  note  with  *  (A)  for  the  cow  bought  of  the  Wilkerson 
estate."  Held,  a  completed  guaranty,  and  that  no  notice  of  ac- 
ceptance was  necessary  to  charge  B.     The  court  said:  "There  is 

'Courtis  V.  Tennis,  7  Met.  (Mass.)  ^ Mathews  v.  Chrisman,  12  Smedes 

510.  &  Mar.  (Miss.)  595,  per  Sharkey,  C.  J. 

'^  Davis  Sewing  Machine  Co.  z?.  Jones,  ^  Breed  v,  Hillhouse,  7  Ct.  523,  per 

CI  Mo.  409.  Hosmer,  C.  J.;  See  also  Studebaker  v. 

'Mitchell  V.  McCleaiy,  42  Md.  374.  Cody,  54  Ind.  586. 


WHEN   NOTICE   OF   ACCEPTANCE    NOT   NECESSAKT.  233 

a  well  recognized  distiuction  between  an  offer  or  proposition  to 
guaranty  and  a  direct  promise  of  guaranty.  The  former  re- 
quires notice  of  acceptance  and  acting  upon  it,  while  the  latter 
does  not." '  A,  who  was  digging  ore  for  B  under  a  parol  contract 
to  dig  it  as  fast  as  B  wanted  it,  refused  to  proceed  with  the  work 
unless  B  would  give  him  a  guaranty  for  the  fulfillment  of  the 
contract  on  his  part.  The  contract  was  thereupon  reduced  to 
writing  and  signed  by  B,  who  procured  C  to  put  on  it  his  guaranty 
of  the  same  date,  as  follows:  "  We  agree  to  warrant  the  perform- 
ance of  the  within  and  above  contract  on  the  part  of  said  B." 
Held,  no  notice  of  the  acceptance  of  this  guaranty  was  necessary 
in  order  to  charge  C.  The  contract  and  guaranty  having  both  been 
signed  at  the  same  time,  were  part  of  the  same  transaction.  The 
delivery  of  the  guaranty  was  not  an  incij)ient  step  in  the  making 
of  the  contract,  but  was  the  completion  of  the  contract,  and  no 
notice  could  make  it  more  complete.^  A  party  desiring  to  pur- 
chase carpets,  proposed  to  the  seller  that  he  would  get  a  certain 
person  to  guaranty  notes  for  the  purchase  money,  which  proj^osi- 
tion  was  satisfactory  to  the  seller.  The  person  referred  to  wrote 
in  a  postscript  to  a  letter  of  the  purchaser,  that  he  would  guaranty 
the  payment  of  the  notes.  The  seller  then  shipped  the  carj^ets, 
and  the  purchaser  signed  the  notes,  but  when  they  were  presented 
to  the  party  who  agreed  to  guaranty  them,  he  evaded  doing  so.  It 
was  held,  that  having  agreed  to  guaranty  a  specific  bill,  no  notice 
to  him  of  the  acceptance  of  the  guaranty  was  necessary.  "  The 
moment  he  wrote  that  acceptance  of  Orne's  ofter,  the  bargain  was 
complete.  lie  then  knew  the  goods  were  to  be  furnished  upon 
his  credit.  He  knew  his  guaranty  was  already  accepted,  and 
that  he  would  be  responsible  for  the  goods,  if  furnished  before 
the  guaranty  was  withdrawn,  and  within  a  reasonable  time;  any 
further  notice  of  the  acceptance  of  the  guaranty  would  have  been 
superfluous."  ° 

§  165.  When  guarantor  not  entitled  to  notice  of  acceptance 
of  guaranty — Special  cases. — Certain  stockholders  of  a  company, 
by  an  instrument  under  their  hands  and  seals,  guarantied  the  pay- 
ment of  all  the  debts  of  the  company  then  outstanding,  and 
bound  themselves  to  pay  all  of  said  debts  to  the  "  creditors  of 

^Carman  v.  Elledge,  40  Iowa,  409,  ^  Cooke  i'.  Orne,  37  111.  186,  perLaw- 

per  Cole,  J.  rence,  J. 

^Bushnell  v.  Church,  15  Ct.  406. 


234  NOTICE  AjShd  demand. 

the  company  wlio  will  not  sue,  but  indulge  the  company  upon 
their  claims  for  ten  months  from  this  time."  Held,  that  a  credi- 
tor of  the  company  at  that  time,  who  indulged  it  ten  months, 
was  entitled  to  recover  the  amount  of  his  debt  against  the  com- 
pany from  said  stockholders,  without  having  notified  them  that  he 
would  so  indulge  it.  The  instrument  signed  by  the  stockholders 
was  an  absolute  present  guarantj',  and  not  an  offer  to  guaranty,' 
The  following  instrument,  viz:  "Mr.  J.  C,  I  will  guaranty  the 
payment  to  you  of  $G25.00  in  treasury  warrants,  to  be  paid  on  or 
before  the  20th  of  August,  on  and  for  account  of  Mr.  J.  W., 
July  loth,  1844,"  was  held  not  to  be  a  guaranty  in  the  legal  sense 
of  the  term,  but  an  original  undertaking  to  pay  J.  0.  the  money 
specified  at  the  appointed  time,  and  no  notice  of  any  kind  was 
necessary  to  charge  the  maker  of  the  instrument.^  A  guaranty 
was  as  follows:  "If  D.  A.  Wills  purchases  a  case  of  tobacco  on 
credit,  I  agree  to  see  the  same  paid  for  in  four  months."  "When 
Wills  returned  from  market,  he  showed  the  guarantor  a  bill  for  a 
case  of  tobacco,  saying  he  had  bought  it  and  paid  for  it  with  his 
note.  The  court  held  the  guaranty  was  absolute,  and  notice  of 
acceptance  was  not  necessary  to  charge  the  guarantor.  The  only 
condition  was  that  the  goods  should  be  furnished,  and  that  was 
done.  When  Wills  told  the  guarantor  he  had  bought  a  case  of 
tobacco,  he  should  have  inquired  and  ascertained  the  facts.^  A 
ao-reed  to  furnish  B  with  books  for  sale,  at  a  certain  price,  upon 
condition  that  B  should  get  a  good,  guarantor  to  the  contract. 
Upon  the  back  of  the  contract  was  written  as  follows:  "We 
guaranty  to  -  (A)  that  the  above  named  *  (B)  will  well 
and  truly  perform  all  his  above  and  foregoing  undertakings,  pur- 
suant to  the  tenor  and  effect  of  said  contract."  0  signed  this 
guaranty,  and  B  delivered  it  to  A,  Books  were  delivered  accord- 
ing to  the  contract,  but  0  was  not  notified  of  the  acceptance  of 
the  guaranty.  Held,  he  was  liable  for  the  price  of  the  books. 
The  court  said:  "  An  absolute  present  guaranty  complete  in  its 
terms  and  fixing  the  liability  of  the  guarantor,  takes  effect  as 
soon  as  acted  upon,"*  A  guaranty  was  as  follows:  "  Mr.  A. 
Ferm  tells  me  that  he  is  about  to  loan  from  you  five  hundred 
dollars,  and  wishes  me  to  state  that  I  will  become  his   event- 

'  Sanders  v.  Etcherson,  36  Ga.  404.  -Case  v.  Howard,  41  Iowa,  479. 

'  Mathews  t'.  Chrismau,  12  Smcdes  *  Bright    v.    McKnight,    1    Sneed, 

■  &  Mar,  (Miss.)  595.  (Tenn.)  158, 


WHEN   NOTICE    OF    ADVANCES   NOT   NECESSAEY.  235 

iial  security  for  the  jiayment;  tliis  I  am  willing  to  do, 
as  I  have  found  him  punctual  on  similar  occasions. " 
Three  hundred  dollars  were  loaned  on  the  faith  of  the  guaranty: 
Held,  no  notice  of  the  acceptance  of  the  guaranty  was  necessary 
to  charge  the  guarantor.  "The  substance  of  the  letter  is  this: 
'  I  will  become  his  eventual  security  for  payment.'  Here  is,  then, 
no  conditional  agreement,  but  a  conclusive  undertaking."  *  A 
guaranty  requested  the  delivery  of  goods  to  a  purchaser,  and 
promised  to  pay  for  them  if  the  purchaser  made  default,  and  con- 
cluded as  follows:  "  Of  which  default  you  are  required  to  give  us 
reasonable  and  proper  notice:"  Held,  no  notice  of  the  acceptance 
of  the  guaranty  need  be  given  the  guarantor  to  charge  him.  He 
had  stipulated  for  a  certain  kind  of  notice,  viz.:  notice  of  the 
default  of  his  jmncipal,  and,  therefore,  no  other  notice  was  re- 
quired." In  the  greater  j)ortion  of  the  foregoing  cases,  holding 
notice  of  acceptance  not  necessary  to  charge  the  guarantor,  as  in 
many  of  the  cases  holding  such  notice  necessary,  the  distinction 
is  drawn  between  an  absolute  guaranty  and  an  offer  to  guaranty. 
There  is  no  conflict  in  principle  between  those  cases,  but  in  the 
application  of  the  prhiciple  to  special  circumstances,  there  is  not 
entire  harmony  in  the  decisions. 

§  166.  "When  guarantor  not  entitled  to  notice  of  advances 
made  to  principal. — Upon  the  same  general  principles,  where  the 
guaranty  is  a  completed  undertaking  to  be  responsible  for  the  ex- 
isting contract  of  another,  of  which  the  guarantor  has  knowledge, 
it  has  been  held  that  no  notice  of  advances  to  the  principal  is 
necessary  to  charge  the  guarantor.^  A  and  B  agreed  to  buy  of 
C  his  crop  of  strawberries  for  the  year,  and  to  pay  therefor  on  de- 
livery. D  added  to  the  agreement  this  clause:  "  On  tlie  part  of 
the  said  Dillons  (A  and  B)  I  hold  myself  with  them  responsible 
for  their  part  of  the  above  contract."  C  delivered  the  berries  to 
A  and  B,  as  they  ripened,  without  being  paid  for  them  on  deliv- 
ery, or  afterwards.  D  had  no  notice  of  the  failure  of  A  and  B 
to  pa}^,  till  suit  was  brought  against  him,  three  months  after  the 
delivery  of  the  berries.  It  was  held  that  D,  by  signing  the  con- 
tract, became  directly  and  not  collaterally  liable,  and  it  was  his 
duty,  without  notice,  to  see  that  the  contract  was  performed.     De- 

1  Cafcon  V.  Shaw,   2  Harris  &  Gill.  =>  Wadsworth  v.  Allen,  8  Gratt.  (Va.) 

(Md.)  i;3.  174. 

^Buslmell  v.  Church,  15  Conn.  406. 


236  NOTICE    AXD    DEMAND. 

livcriii'^  the  berries  without  getting  pay  for  them  as  delivered, 
did  not  change  tlie  contract.'  A,  who  was  cultivating  a  large 
number  of  trees  on  his  land,  agreed  in  writing  with  B  to  culti- 
vate them  there  till  September  13th,  and  at  that  time  to  deliver 
to  B,  at  the  place  of  their  growth,  15,000  trees,  to  be  designated 
and  counted  by  the  parties.  It  was  stipulated  that  if  either  par- 
ty failed  to  perform  his  contract  he  should  forfeit  $3,000.  Un- 
derneath was  written  as  follows :  "  In  case  B,  one  of  the  parties 
named  in  the  foregoing  instrument,  should  incur  the  forfeiture 
mentioned  therein,  we  hereby  guaranty  the  payment  of  the  same ;" 
which  was  signed  by  C,  as  guarantor.  A  cultivated  the  trees  as 
agreed,  and  was  always  ready  to  perform,  but  B  failed  of  per- 
formance on  his  part.  Held,  that  C  was  liable,  and  no  notice  of 
B's  default  need  be  given  to  fix  his  liability.  The  court  said: 
"  Xone  is  bound  to  give  notice  to  another  of  that  which  that  oth- 
er person  may  otherwise  inform  himself  of.  ISTor  is  notice  neces- 
sary where  the  thing  lies  as  much  in  the  cognizance  of  the  one  as 
of  the  other.  *  In  the  present  case  *  (C)  was  privy  to  the 
contract  made  by  *  (B);  he,  as  well  as  *  (A),  knew  its 
terms  and  its  time  of  performance,  and  by  an  inquiry  could  have 
ascertained  whether  a  forfeiture  against  which  he  had  himself 
stipulated  had  occurred." "  A  party  gave  an  agreement  to  pay 
his  instalments  on  shares  in  an  insurance  company,  and  an- 
other party  guarantied  the  performance  of  the  agreement.  Held, 
that  although  the  amount  which  was  to  become  due  on  the 
agreement  was  uncertain  when  it  was  made,  yet  notice  of  that 
amount  was  not  necessary  to  be  given  the  guarantor,  as  he  him- 
self should  have  taken  notice  of  the  amount.  The  court  said 
that  where  the  unascertained  liability  existed  on  the  face  of  the 
original  contract,  it  was  the  duty  of  the  guarantor  to  see  that 
the  principal  performed  his  contract.^  A  bond,  signed  by 
a  principal  and  two  sureties,  stated  that  the  principal  re- 
quired money  to  carry  on  his  business,  and  required  ad- 
vances from  the  bank,  and  "  in  case  of  his  lailure  to  pay  any 
such  loans  and  advances  as  aforesaid,"  the  same  might  be 
collected  from  the  signers.  The  bank  advanced  money  to  the 
principal,  but  did  not  notify  the  sureties  of  the  same.     Held,  no 

'  Kirby  v.  Studebaker,  15  Ind.  45.  » p^-otg^jtio^  j^s.  Co.  v.  Davis,  5  Al- 

*  Hammond  r.  Gilmore's  Admr.  14      len,  54. 
'  Ct.  479,  per  Churcli,  J. 


NOTICE    OF    ACCEPTANCE    OF   GUARANTY.  237 

sucli  notice  was  necessary  to  charge  the  sureties.  They  were 
joint  original  promisors  who  were  directly  liable,  and  not  guar- 
antors who  were  collaterally  liable.'  A  executed  a  writing 
whereby  he  agreed  with  B  that  he  would  at  all  times  hold 
himself  responsible  to  B  to  the  amount  of  $20,000,  without  no- 
tice to  be  given  to  him  by  B.  This  writing  was  simultaneously 
delivered  by  A  and  accepted  by  B,  and  B  on  the  credit  thereof 
discounted  paj)er  indorsed  by  C.  Held,  that  no  notice  of  the 
acceptance  of  the  guaranty  or  the  amount  advanced  under  it  was 
necessary  to  charge  A.  The  court  said  this  was  not  such  a  case 
as  that  of  a  letter  of  credit.  A  letter  of  credit  is  a  mere  propo- 
sition and  until  it  is  accepted,  and  notice  of  that  fact  given,  the 
minds  of  the  parties  have  not  met  and  there  is  no  contract.  "  Its 
reception  is  unavoidable,  its  acceptance  as  a  promise  optional; 
its  deliver}^  is  with  a  view  to  its  acceptance,  and  must  therefore 
necessarily  precede  it.  Until  such  acceptance  it  is  not  consum- 
mated into  a  contract,  but  remains  a  mere  proposition,  and  there 
has  been  no  meeting  of  the  minds  of  the  parties."  But  in  this 
case  the  delivery  of  the  instrument  "  was  not  an  incipient  step  in 
the  formation  of  the  contract,  but  the  result  of  previous  negotia- 
tion and  agreement,  and  constituted  the  very  consummation  of 
the  contract." "' 

§  167.  Cases  holding  guarantor  for  indefinite  amount  on 
credit  to  be  given,  not  entitled  to  notice  of  acceptance  of 
guaranty. — There  is  a  class  of  cases  which  hold  that  where  the 
guaranty  relates  to  advances  to  be  liiade,  and  the  party  to  make 
them,  as  well  as  the  amount  to  be  advanced,  are  not  ascertained, 
the  guarantor  is  liable  without  notice  of  the  acceptance  of  the 
guaranty,  or  of  the  amount  advanced.  These  decisions,  while 
they  are  the  law  where  they  were  rendered,  are  opposed  to  the 
great  weight  of  authority,  and  seem  to  be  founded  on  much  less 
satisfactory  reasons  than  the  cases  holding  the  opposite  view. 
But  even  here  the  conflict  is  more  in  the  application  of  principles 
to  special  facts  than  in  principles  themselves.  All  courts  recognize 
the  principle  that  it  is  necessary  to  the  completion  of  a  contract 
that  the  minds  of  both  contracting  parties  shall  meet;  the  conflict 
is  as  to  when  they  have  met.  They  all  hold  that  a  mere  offer  to 
guaranty,  the  same  as  any  other  oSer,  is  not  binding  unless 

1  McMillan  v.  Ball's  Head  Bank,  32  ''New  Haven  Co.  Bank  v.  Mitchell, 

Ind.  11.  15  Ct.  206,  per  Storrs,  J. 


238  NOTICE    AND    DEMAND. 

accepted;  the  conflict  is  as  to  whether  the  guarantor  must  be 
notified  of  the  acceptance  of  the  guaranty,  and  whether  the  writing 
amounts  to  an  offer  to  guaranty  or  to  a  completed  guaranty.  A 
guaranty  addressed  to  a  mercantile  firm  in  these  words,  "  "We 
consider  Mr.  J.  good  for  all  he  may  want  of  you,  and  will  in- 
demnify the  same,"  was  held  to  be  a  completed  guaranty  of  the 
acceptance  of  which  it  was  not  necessary  to  notify  the  guarantor. 
The  Court  said:  "Unless  there  is  something  in  the  nature  of  the 
contract  or  terms  of  the  writing,  creating  or  implying  the  neces- 
sity of  acceptance  or  notice,  as  a  condition  of  liability,  neither 
are  deemed  requisite.  *  The  party  entering  into  an  abso- 
lute engagement  for  the  responsibility  of  his  friend,  should 
see  to  the  performance  of  it.  The  relation  in  which  the 
parties  afterwards  stand  to  each  other  presupposes  privity  and 
knowledge  of  the  credit  obtained." '  A  letter  of  guaranty 
was  as  follows  :  "  If  you  will  let  A  have  one  hundred  dollars 
worth  of  goods,  on  a  credit  of  three  months,  you  may  regard  me 
as  guarantying  the  same."  Held,  the  guarantor  was  liable  with- 
out any  notice  of  the  acceptance  of  the  guaranty.  "  Here  the 
undertaking  was  absolute.  The  defendant  said  to  the  plaintiff, 
in  substance  :  '  If  you  will  deliver  the  goods  I  will  guaranty  the 
payment.'  We  cannot  add  a  condition  that  the  defendant  shall 
have  notice.  He  should  have  provided  for  that  himself  in  the 
proposal  made  to  the  plaintiff.  I  know  there  are  cases  which  re- 
quire notice,  but  we  think  they  are  not  based  on  the  common  law, 
and  for  that  reason  they  have  not  been  followed  in  this  state."  ^ 
Where  A,  by  a  general  letter  of  credit,  undertook  to  accept  and 
pay  drafts  to  be  drawn  by  B,  to  a  given  amount,  and  C,  at  the 
foot  of  the  letter,  at  the  same  time,  wrote  and  signed  these  words  : 
"  I  hereby  agree  to  guaranty  the  duo  acceptance  and  payment, 
of  any  draft  or  drafts  issued  in  virtue  of  the  above  credit,"  it  was 
held  that  C  was  liable  to  the  party  advancing  money  on  the 
guaranty,  without  any  notice  of  its  acceptance.^  A  guaranty  ad- 
dressed to  a  merchant,  after  explaining  who  the  bearer  was,  went 

^Whitney  v.  Groot,  24  Wend.  82,  Bank,  18  Ohio,  126;  Powers  v.  Bum- 
per Nelson,  C.  J.  cratz,  12  Ohio  St.  273;  overruling  Taylor 

*  Smith  V.   Dann,     6  Hill  543,  per  v.  Wetmore,  10  Ohio  491  ;  in  Clark  v. 
Bronson,  J.  Burdett,  2  Hall  (N.  Y.)  217,  this  prin- 

*  Union  Bank  v.  Coster's  Exr. ,  3  New      ciple  was  applied  to  the  case  of  a  con- 
.  York  203  ;    following  and  approving      tinning  guaranty. 

these  cases,  see  Lonsdale  v.  Lafayette 


WHEN   NOTICE   OF   DEFAULT    NECESSAEY.  239 

on,  "  I  want  3-011  to  sell  him  a  bill  of  goods  on  the  best  terms  you 
can  afford  ;  I  will  guaranty  the  payment  of  every  dollar,"  Held, 
no  notice  of  the  acceptance  of  the  guaranty,  or  the  default  of  the 
principal  was  necessary  to  charge  the  guarantor.^  "Where  the 
agreement  to  accept  a  letter  of  credit  on  the  part  of  the  person  to 
whom  it  is  addressed,  is  contemporaneous  with  the  writing  of  the 
letter,  and  is  known  to  the  writer,  there  no  other  notice  of  accept- 
ance of  guaranty  is  necessary  to  charge  him.^ 

§  168.  When  guarantor  entitled  to  notice  of  default  of  prin- 
cipal.— ^Whether  demand  of  payment  must  be  made  of  the  prin- 
cipal, and  notice  of  his  default  be  given,  in  order  to  charge  the 
guarantor,  is  a  question  depending  very  much  upon  the  nature  of 
the  particular  guaranty.  Where  the  liability  of  the  guarantor  is 
not  direct,  but  is  collateral  and  dependent  upon  the  default  of 
another,  notice  of  such  default  to  such  guarantor,  within  a  rea- 
sonable time,  has  been  held  necessary,  where  a  guaranty  of  a  note 
was  as  follows:    "I  guaranty  the  payment  of  the  within  note  to 

*  (A),  for  value  received:"^  Where  a  debtor  transferred  to 
his  creditor  certain  notes  of  third  persons  in  payment  of  his  own 
debt,  and  promised,  if  the  creditor  could  not  collect  the  notes,  he 
would  pay  them*/  And  where  an  instrument  was  as  follows:  "I 
have  this  day  sold  to  Kannon  a  note  on  Wortham  for  four  hun- 
dred and  twelve  dollars,  which  I  guaranty  to  said  Kannon,  waiv- 
ing all  exception  of  my  not  assigning  said  claim,  and  holding 
myself  bound  for  the  same  for  value."  ^  So,  where  the  holder 
of  a  promissory  note  failed  to  give  the  guarantor  of  the  same 
notice  of  its  non-payment  for  nine  months  after  its  dis- 
honor, and  the  maker  was  solvent  when  the  note  became  due, 
but  afterwards  became  insolvent,  it  was  held,  the  guarantor 
was  discharged.  The  court  said :  "  It  is  clearly  conformable  to 
the  general  principles  of  right  and  justice  that  the  creditor, 
who  knows  of  the  delinquency  of  his  debtor,  and  withholds  in- 
formation of  it  from  the  guarantee,  by  reason  of  which  the  debt 

^  Yancey  v.  Brown,  3  Sneed  (Tenn.)  Ring-gold  v.  Newkirk,  3  Ark.  (Pike) 

89.  96;  Foote  v.  Brown,  2  McLean,  396; 

2  Wildes  v.  Savage,  1  Story  22.     To  Gamage  v.  Hutchins,  23  Me.  565. 

similar  effect,  see  Paige   v.  Parker,   8  ^Adcock  1;.  Fleming,  2  Dev.  &  Bat. 

Gray,  211.  Law  (Nor.  Car.)  225. 

'Cox  V.  Brown,  6  Jones  Law  (Nor.  ^ Kannon «.  Neely,  10 Hump.  (Tenn.) 

Car.)  100.  To  same  effect,  see  Grice  p.  288.     To  similar  efiect,   see  Sage    v. 

Ricks,    3   Dev.    Law  (Nor.    Car.)    62;  Wilcox,  6  Ct.  81. 


240  NOTICE    AXD    DEMAND. 

is  actually  lost  when  it  might  have  been  saved  by  either,  should 
not  throw  the  loss  upon  the  guarantee,"^  Tlie  payee  of  a  note 
sold  it,  and  indorsed  a  guaranty  of  its  payment  upon  it.  ^o  de- 
mand was  made  on  the  maker  of  the  note,  and  lie  remained  sol- 
vent for  six  months  after  it  became  due,  and  afterwards  became 
insolvent.  Two  years  after  the  note  became  due,  notice  of  non- 
payment was  given  the  guarantor,  and  demand  of  payment  made 
on  him.  Held,  he  was  not  liable.  The  court  said:  "The under- 
taking of  the  guarantor  of  a  promissory  note  is  conditional,  and 
he  will  be  discharged  by  the  neglect  of  the  holder  to  demand 
payment  of  the  maker,  and  give  the  guarantor  notice  of  the  non- 
payment, provided  the  maker  was  solvent  when  the  note  fell  due, 
and  afterwards  became  insolvent."  '  A  party  guarantied  the  punc- 
tual payment  of  two  accepted  bills.  When  the  bills  became  due 
the  acceptors  were  solvent,  and  so  continued  for  four  months,  and 
then  became  insolvent.  Ko  notice  was  given  to  the  guarantor 
within  the  next  four  years.  Held,  he  was  discharged.  The  court 
said:  "In  the  case  before  us,  the  guaranty  was  that  the  accept- 
ances should  be  promptly  met  by  the  acceptors.  An  agreement 
in  such  case  to  pay  at  all  events,  without  reference  to,  or  reliance 
upon  the  acceptors,  could  not  be  inferred.  His  warranty  was 
that  the  acceptors  would  pay  as  they  were  bound  to  do,  and  not 
that  he  himself  would  pay  without  regard  to  whether  they  did 
so  or  not." '  Wliere  certain  parties  guarantied  the  performance 
of  a  contract  for  the  purchase  of  a  lot  of  cattle,  and  the  payment 
therefor,  and  for  eighteen  months  after  the  maturity  of  the  con- 
tract, the  principal  was  solvent,  but  afterwards  became  insolvent, 
and  no  notice  of  his  default  was  given  the  guarantors,  it  was  held 
they  were  discharged.*  A  guarantor  of  a  promissory  note,  pay- 
able on  demand,  is  discharged  from  his  contract  of  guaranty,  by 
the  omission  of  the  holder  to  give  him  notice  within  a  reasonable 
time  of  demand  on  the  maker,  and  non-payment  by  him,  pro- 
vided the  maker  was  solvent  when  the  guaranty  was  made,  and 
became  insolvent  before  notice  of  non-payment  was  given.^     In 

'  Oxford  Bank  r.  Haynes,  8  Pick.  423,  '  Globe  Bank  r.  Small,  25  Me.  366, 

per  Parker,  C.  J.  per  Whitman,  C.  J. 

*  Talbot  V.  Gay,  18  Pick.  534,  per  *  Gaff  v.  Sims,  45  Ind.  262. 

Wilde,  J.    Generally  as  to  when  guar-  =Whiton  r.  Mears  11  Met.  (Mass.,) 

antor  is  entitled  to  notice  of  principal's  563;  to   similar  effect,  see  Nelson  v. 

default,  see  Lowe  v.  Beckwith,  14  B.  Bostwick,  5  Hill,  37;  Douglass  v.  Rath- 

Mon.  (Ky.)  150.  bone,  5  Hill,  143. 


DEMAND    OF    PAYMENT    AND    NOTICE    OF    DEFAULT.  241 

cases  where  notice  of  the  principal's  default  is  necessary  to  cliarge 
the  guarantor,  the  same  strictness  is  not  required  as  in  the  case 
of  indorsers.  The  notice  need  not  be  given  immediately  upon 
the  principal's  default.  If  it  is  given  within  a  reasonble  time, 
that  is  sufficient.^ 

§  169.  When  demand  of  payment  on  principal  and  notice  of 
his  default  necessary  to  charge  guarantor. — When  the  advances 
are  made  to  the  principal  on  a  letter  of  credit,  signed  bv  the 
guarantor,  the  weight  of  authority  is  that  demand  of  payment 
must  be  made  on  the  principal,  and  notice  of  his  default  be  given 
the  guarantor  within  a  reasonable  time,  in  order  to  charge  him, 
unless  the  principal  be  insolvent  when  the  debt  becomes  due. 
The  law  upon  this  subject,  and  the  reasons  upon  which  is 
founded,  have  been  thus  stated:  "A  demand  upon  him  (the 
principal),  and  the  failure  on  his  part  to  perform  his  engage- 
ments, are  indispensable  to  constitute  a  casus  foederis.  The 
creditors  are  not  indeed  bound  to  institute  any  legal  proceedings 
against  the  debtor,  but  they  are  required  to  use  reasonable  dili- 
gence to  make  demand,  and  to  give  notice  of  the  non-payment. 
The  guarantors  are  not  to  be  held  to  any  length  of  indulgence  of 
credit  which  the  creditors  may  choose,  but  have  a  right  to  insist 
that  the  risk  of  their  responsibility  shall  be  fixed  and  terminated 
within  a  reasonable  time  after  the  debt  has  become  due."  ^ 
Where  O,  by  an  instrument  under  seal,  assigned  certain  contracts 
for  the  payment  of  money,  and  covenanted  that  the  sum  set 
opposite  each  contract,  in  a  schedule  annexed  to  the  assignment, 
was  due  and  would  be  paid,  it  was  held  that  O  being  a  guarantor 
of  the  amount  due  on  the  contracts,  in  order  to  maintain  a  suit 
against  him,  it  was  necessary  to  aver  a  previous  demand  of  pay- 
ment from  the  persons  bound  by  the  contracts.  The  contracts 
having  been  assigned  to  the  plaintiff',  they  alone  could  demand 
and  receive  payment,  and  they  must  make  such  demand  before 
coming  upon   the    guarantor.^     Certain   parties  entered  into  a 

'  Bull  V.  Bliss,  30  Vfc.  127;  Dunbar  r.  v.  Bainbridge,  6  Blackf.  (Ind.)  12.  a 
Brown,  4  McLean,  166;  Talbot  v.  Gay,  delay  of  eighteen  months  in  notifying 
18  Pick.  534,  and  many  of  the  cases  the  guarantor  was  held  to  be  unreason- 
cited  in  this  chapter  to  other  points.  able,  and  to  discharge  the  guarantor. 

Ter  Stoi-y,  J.  in  Douglass  v.  Rey-  ^Mechanics  Fire  Ins.  Co.  v.  Ogden, 

nolds,  7  Peters,  113.  See.  also,  McCol-  1  Wend.  137;  contra,  Barker  r.  Scud- 

lum  V.  Cushmg,  22  Ark.  540.  In  Smith  der,  56  Mo.  272. 

16 


242  NOTICE    AND    DEMAND. 

guaranty,  in  jjart,  as  follows:  "We  hereby  engage  to  see  yon 
paid,  in  due  course,  for  the  hill  of  goods  bought  by  Mr.  Koss 
from  you  on  the  27th  inst."  A  particular  bill  of  goods  which 
liad  been  previously  bargained  for  were  delivered  on  the  strength 
of  the  guaranty.  Held,  that  this  was  not  an  original  undertak- 
ing, but  an  nndertaking  to  pay  if  Koss  did  not,  and  that  the 
guarantors  were  entitled  to  prompt  notice  of  his  default  unless  he 
was  insolvent.^  Where  a  guaranty  provided  that  when  a  note 
became  due,  it  should  be  good  and  collectible,  it  was  held  that  it 
did  not  bind  the  guarantor  unless  diligence  was  used  to  collect 
the  note,  and  the  guarantor  was  notified  that  it  could  not  be  col- 
lected. The  Court  said  that,  if  a  party  stipulates  to  do  a  thing 
himself,  or  that  another  shall  do  it,  he  must  take  notice  whether 
or  not  it  is  done.  But  when  he  stipulates  that  the  party  he  con- 
tracts with  can,  by  his  diligence,  do  a  certain  thing,  the  case  is 
different.  "  He  is  not  then  supposed  to  know,  nor  does  he  assume 
to  know  the  means  taken,  or  the  result,  ls"otice  is,  therefore, 
required,  for  the  reason  assigned  by  Judge  Swift,  that  it  would 
be  against  principle  to  admit  a  man  to  be  sued  when  he  has  no 
knowledge  of  the  existence  of  the  demand."  ^  A  and  B  each 
owned  an  interest  in.  the  same  land.  A  transferred  his  interest 
to  B,  and  guarantied  that  if  the  title  proved  defective  the  grantor 
of  the  two  would  recompense  B  for  the  loss  of  the  title.  Held, 
that  demand  on  the  grantor  by  B,  and  notice  of  his  default  to  A, 
were  necessary  before  bringing  suit  against  A  on  the  guaranty. 
Whether  A  had  to  pay  at  all  depended  upon  a  contingency,  and 
in  order  to  put  him  in  default  it  was  necessary  to  demand  pay- 
ment from  the  grantor,  and  notify  A  of  his  default.' 

§  ITO.  When  demand  of  payment  on  principal  and  notice 
of  his  default  to  guarantor  not  necessary  to  charge  guarantor — 
Guaranty  of  promissory  note,  etc. — Where  the  contract  of  gljar- 
anty  absolutely  and  unconditionally  provides  that  the  debtor  shall 
pay  a  given  sum  at  a  stated  time,  no  demand  of  payment  on  the 
principal  or  notice  of  his  default  is  necessary  before  suing  the 
guarantor.^     This  principle  has  been  very  generally  applied  to 

'Mayberry  v.  Bainton,  2  Harring-  ^Morris  v.  Wadsworth,  17  Wend, 

ton  (Del.)  24.  103. 

■■'  Sylvester  v.  Downer,  18  Vfc.  32,  per  *Mann  v.  Eckfords'  Exrs,  15  Wend. 

Royce  J.     As  to  the  notice  necessary  502;  Peck  v.  Barney,  13  Vt.  93;  East 

to  charge  a  guarantor  of  collection,  see  River  Bank  v.  Rogers,  7  Bosw^.  (N.  Y.) 

Brackett  v.  Rich,  23  Minn.  485.  493;  March  v.  Putney,  56  New  Hamp. 


WHEN   DEMAND    AND    NOTICE   NOT    NECESSARY.  243 

guaranties  of  promissory  notes.'  Where  a  jjarty  guarantied  the 
payment  of  a  note  if  it  should  not  be  "  duly  honored  and  paid  " 
by  the  maker,  according  to  its  tenor  and  effect,  it  was  held  he 
was  liable  on  his  guaranty  if  the  note  was  not  paid  by  the  maker, 
even  though  no  demand  of  payment  was  made  on  the  maker  be- 
fore suit  was  brought  against  him.  The  court  said :  "  Now  it  is 
clear  that  a  request  for  the  payment  of  a  debt  is  quite  immaterial 
unless  the  parties  to  the  contract  have  stipulated  that  it  shall  be 
made;  if  they  have  not,  the  law  requires  no  notice  or  request, 
but  the  debtor  is  bound  to  find  out  the  creditor  and  pay  him  the 
debt  when  due.'"*  The  payees  of  a  note  indorsed  it  as  follows: 
"For  value  received  we  guaranty  the  payment  of  the  within  note 
at  maturity."  Held,  "  as  between  them  (the  guarantors)  and  the 
maker  of  the  note,  the  holder  was  under  no  obligation  to  demand 
payment  of  the  maker,  and  on  his  default  to  notify  the  guarantors, 
for  they  undertook  to  pay  at  all  hazards  at  maturity,  the  one  being 
as  much  bound  as  the  other.  *  Their  duty  was,  and  of  each  of 
them,  on  its  maturity  to  go  to  the  holder  and  take  it  up.  The 
holder  was  under  no  legal  or  moral  obligation  to  hunt  them  and 
make  a  demand." '  The  same  thing  was  held  where  the  guaranty  of 
a  note  was  as  follows:  "  I  guaranty  the  said  note  is  good,  and  the 
payment  of  the  same:"  ^  Where  the  payee  of  a  note  indorsed  it 
as  follows:  "I  do  assign  the  within  note  to  *  (A)  for  value  re- 
ceived, and  guaranty  the  punctual  payment  of  the  same  at  maturi- 
ty:" "  Where  the  payee  of  a  non-negotiable  note  indorsed  it  as  fol- 
lows :  "  I  guaranty  the  within  at  maturity :"  ^  When  a  guaranty  was 
in  these  words:  "  On  the  25th  December,  1824, we  bind  ourselves  to 
see  the  within  note  paid :" '  Where  a  party  wrote  on  the  back  of 
a  note,  "  I  hereby  guaranty  the  payment  of  balance  due  on  note 
^'     within  sixty  days  from  the  second  day  of  May,  1843,  balance 

34;  Bank  v.  Hammond,   1  Rich.  Law  *  Walton    v.    Mascall,    13  Mees.  & 

(So.   Car.)  281;   Eneas  v.   Hoops,    10  Wels.  452,  per  Parke,  B. 

Jones  &  Spen.  (N.  Y.)  517.  ^Guge'v.  Mechanics  National  Bank 

'Forest  v.  Stewart,  14  Ohio  St.  246;  of  Chicago,  79  111.  62,  per  Breese,  J. 

Williams  v.  Granger,  4  Day  (Conn.)  *  Woodstock  Bank  v.   Downer,    27 

444;    Malloiy    v.    Lyman,    3    Pinney  Vt.  539. 

(Wis.)  443;    Ten  Eyck  v.   Brown,   3  ^^  Thrasher  v.  Ely,  2  Smedes  &  Marsh. 

Pinney  (Wis.)  452;  Clark  v.  Merriam,  (Miss.)  139. 

25  Ct.  676;  Levi  v.  Mendell,  1  Duvall,  « Peck  v.  Frink,  10  Iowa,  193. 

(Ky.)  77;  see,  also,  Gammell  V.  Parra-  'Taylor  v.  Ross.   3  Yerg.  (Tenn.) 

more,  58  Ga.  54.  330. 


244  NOTICE    AND    DEMAND. 

due  this  day,  $292.22:"^  And  wliere  a  guaranty  on  the  back  of  a 
note  was  as  follows:  "I  guaranty  the  payment  of  the  within  note 
to  C.  Edgerton  or  order."  ^  In  the  case  last  referred  to,  the  court 
said:  "Where  the  guaranty  of  payment  is  absolute  and  uncon- 
ditional, we  are  of  opinion  that  it  is  not  necessary,  in  order  to  make 
out  a  prima  facie  case  for  recovery,  to  aver  or  prove  either  de- 
mand or  notice."  Moss  obligated  himself  to  deliver  on  a  given 
day,  and  at  a  specified  place,  seventy  bushels  of  salt  to  Hunter. 
Hunter  transferred  this  obligation  by  assignment,  and  guarantied 
the  payment  of  the  salt  as  follows:  "  For  value  received  I  assign 
the  within  note  to  *  (A)  and  guaranty  the  payment  of  the 
same."  Held,  this  was  an  absolute  engagement  to  deliver  the 
salt  at  the  time  and  place  specified,  if  the  maker  did  not,  and  de- 
mand on  the  maker  and  notice  to  the  guarantor  were  not  neces- 
sary to  charge  the  guarantor.^  A  memorandum  at  the  foot  of  a 
promissory  note  in  these  words:  "  I  hereby  obligate  myself  that 
the  above  note  shall  be  paid  in  three  years  from  this  4th  day  of 
June,  1838,"  made  in  consideration  that  the  payee  should  delay 
payment  until  two  years  after  the  maturity  of  the  note,  was  held 
to  be  an  original  undertaking,  which  did  not  require  that  demand 
of  payment  should  be  made  of  the  maker  and  notice  of  his  de- 
fault be  given  in  order  to  charge  the  guarantor." 

§  171.  When  guarantor  bound  ^w•ithout  notice  of  default  of 
principal— Other  cases. — The  same  principle  has  been  applied 
and  notice  to  the  guarantor  of  the  principal's  default  held  not  to 
be  necessary  in  a  variety  of  other  cases.  Thus,  where  A  agreed 
to  account  with  B  and  pay  over  to  him  such  sum  as  he  should  be 
found  to  be  indebted,  and  0  covenanted  that  A  should  perform 
the  agreement,  it  was  held  that  an  action  lay  against  C  by  B,  for 
the  default  of  A,  without  previously  giving  B  notice  of  such  de- 
fault.^ A  contract  provided  for  the  return  of  certain  shares  of  rail- 
road stock  which  were  loaned,  and  for  the  payment  of  interest  for 
their  use.  At  the  same  time  the  contract  was  executed,  certain 
parties  guarantied  it  as  follows:  "We,  the  undersigned,  guaran- 
ty the  fulfillment  of  the  above  obligation  and  hereby  promise 

» Cooper  V.  Page,  24  Me.  73.  «  Douglas  v.  Howland,  24  Wend.  35, 

^  Clay  V.  Edgerton,  19  Ohio  St.  549.  in  which  Mr.  Justice  Cowen  delivered 

per  Brinkerhoff,  C.  J.  an  elaborate  opinion  repudiating  the 

^  Hunter  v.  Dickmson,  10  Humph.  entire  doctrine  that  notice  of  accept- 

(Tenn.)  37.  ance  of  a  guaranty    is  necessary  to 

*  Reed  v.  Evans,  17  Ohio,  128.  charge  the  guarantor. 


WHEN   DEMAND   AND    NOTICE    NOT   NECESSAKY.  245 

said  Hiram  Simons  that  said  stock  shall  be  returned  at  the  time 
specified,  agreeable  to  the  above  contract."  Held,  no  demand  on 
the  principal  or  notice  of  default  on  his  part  was  necessary  to 
charge  the  guarantors.'  A  and  B  being  partners,  dissolved  their 
partnership,  and  A  agreed  to  pay  the  partnership  debts,  and  gave 
B  bond  with  C  as  surety,  that  he  would  do  so.  Held,  that  no 
notice  of  A's  default  in  paying  the  partnership  debts  was  neces- 
sary to  be  given  C  before  B  could  sue  him.  The  court  said:  "  It 
is  a  general  rule  that  where  one  guaranties  the  act  of  another  his 
liability  is  commensurate  with  that  of  his  principal  and  he  is  no 
more  entitled  to  notice  of  the  default  than  the  latter.  Both  must 
take  notice  of  the  whole  at  their  peril."  ^  Where  a  guaranty 
stated  that  if  the  principal  did  not  pay  the  creditor  a  certain  sum 
"in  three  months  from  this  time,"  the  guarantor  agreed  "to 
guaranty  to  said  Dickerson  the  payment  of  said  sum  of  money." 
It  was  held  that  no  notice  of  the  non-payment  by  the  principal 
was  necessary  to  charge  the  guarantor.^  A  guaranty  stated  that 
if  certain  merchants  would  furnish  a  purchaser  goods,  the  guar- 
antor would  "be  accountable  to  you  for  all  his  contracts  or  en- 
gagements, as  you  and  he  may  agree,  and  in  case  he  does  not  ful- 
fill them  as  agreed,  I  will  guaranty  the  payment  thereof." 
Goods  were  sold  and  the  guarantor  notified  thereof.  Held,  it  was 
not  necessary  in  order  to  charge  him  that  payment  should  first 
be  demanded  of  the  principal  and  notice  of  his  default  be  given." 
In  April,  1825,  the  defendant  guarantied  the  payment  of  money 
due  from  his  son  to  the  plaintiff  upon  a  sale  of  timber.  The 
plaintiff  received  j)art  payment  from  the  son,  and  made  repeated 
unsuccessful  applications  to  him  for  the  residue  till  December, 
1827,  when  he  became  bankrupt.  The  plaintiff  never  disclosed 
to  the  defendant  the  result  of  these  applications,  but  on  Decem- 
ber 27th,  1827,  sued  him  on  his  guaranty.  Held,  the  guarantor 
was  liable,  on  the  ground  that  mere  passive  delay  on  the  part  of 
the  creditor  will  not  discharge  the  surety.^ 

§  172.  When  no  notice  of  default  in  payment  by  principal  need 
be  given  guarantor  of  over-due  debt,  of  lease,  and  of  negotiable 
instrument  by  separate  contract. — The  rule  that  no  notice  of  the 

1  Simon  v.  Steele,  36  New  Hamp.  73.  *  Noyes  v.  Nichols,  28  Vt.  159. 

*  Gage  V.   Lewis,    68  111.  604,   per  '  Goring  v.   Edmonds,   6  Bing.  94; 

Sheldon,  J.  Id.  3  Moore  &  Payne,  259. 
^  Dickerson  r.  Derrickson,  39  111.574, 


246  NOTICE    AXD    DEMAND. 

principal's  default  need  be  given  in  order  to  charge  tlie  uncondi- 
tional guarantor  of  an  existing  demand,  is  specially  applicable  to 
a  o-uaranty  of  a  debt  made  after  the  debt  is  due.  In  sucb  case, 
the  principal  is  in  default  when  the  guaranty  is  made,  and  the 
reasons  requiring  notice  do  not  apply.  Thus  H  was  indebted  to 
R  in  a  certain  sum  then  due  and  payable,  and  C,  in  consideration 
of  an  indemnity  given  by  H,  and  of  R's  engagement  not  to  sue 
H  for  twelve  months,  promised  to  pay  E.  the  debt  at  that  time, 
unless  the  same  should  have  been  paid  by  H.  Held,  this  was  an 
original  and  absolute  undertaking,  and  no  demand  on  H,  or  no- 
tice of  his  default  was  necessary  in  order  to  charge  C.^  The 
same  thing  has  been  held  in  the  case  of  a  guaranty  of  an  over- 
due promissory  note,  when  the  guaranty  on  the  back  of  the  note 
was:  "  I  assign  the  within  note  to  *  (A),  and  guaranty  the  pay- 
ment thereof,  for  value  received:""  When  a  stranger  to  a  note 
wrote  on  it,  after  it  was  due,  "  I  hereby  guarantee  the  payment 
of  the  within  note,  ninety  days  from  the  date  of  this  guaranty:"^ 
And  when  the  j)ayeeof  an  overdue  note  indorsed  it  as  follows,  "I 
assign  the  within  note  to  *  (A),  for  value  received,  and  guar- 
anty its  prompt  and  full  j^ayment."  *  It  is  not  usually  neces- 
sary, in  order  to  charge  the  guarantor  of  rent  to  come  due  under 
a  lease,  that  demand  should  be  made  on  the  principal,  and  the 
guarantor  be  notified  of  his  default.  Thus  a  party,  by  a  writing 
on  the  back  of  a  lease  running  five  years,  bound  himself  to  pay 
the  lessors  "  all  rents,  and  damages  of  every  kind  they  may  sus- 
tain, by  reason  of  the  non-compliance  or  fulfillment  of  the  stipu- 
lations of  the  within  lease  by  said  "  lessee.  The  lessee  occupied 
the  premises  about  half  the  term,  and  then  left  them.  About 
three  years  after  he  left,  the  lessors  demanded  the  rent  of  the 
guarantor,  and  brought  suit  on  the  guaranty,  but  they  had  before 
given  the  guarantor  no  notice^ of  the  default  of  the  lessee.  Held, 
the  guaranty  was  an  absolute  undertaking,  and  the  guarantor  was 
liable,^     In  an  action  against  the  guarantor  of  rent  already  due, 

'  Read  V.  Cutts,  7  Greenl.  (Me.)  186.  sy^itz  ^..   Harris,   40  lU.   155;  ex- 

*  Foster  V.  Tolleson,  13  Rich.  Law  &  plaining  and  modifying,  White  v. 
Eq.  (So.  Car.)  31;  contra,  Benton  v.  Walker,  31  111.  422.  To  same  effect, 
Gibson,  1  Hill  (So.  Car.)  56.  see  Ducker  v.  Rapp,  9  Jones  &  Spen- 

^Sabin  v.  Harris,  12  Iowa,  87.  cer  (N.Y.)  235;  Turnurev.  Hohenthal, 

*  Wright  V.   Dyer.  48  Mo.  525;  to  4  Jones  &  Spencer  (N.Y.)  79;    contra, 
eame  effect,   see  Lane  v.  Levillian,  4  Yirden  v.  Ellsworth,  15  Ind.  144. 
A.rk.  (Pike),  76. 


WHEN    NOTICE   OF   DEFAULT    NOT    NECESSAKY.  247 

and  to  become  due  for  a  certain  time,  from  a  tenant  at  will,  it 
has  been  held  that  it  is  not  necessary  to  prove  a  demand  of  pay- 
ment on  the  tenant,  and  notice  of  the  non-payment  to  the  guar- 
antor, unless  the  terms  of  the  guaranty,  or  the  nature  and  cir- 
cumstances of  the  particular  case  require  it.  The  court  in  an 
able^opinion,  which  presents  a  clear  vifew  of  the  law  on  this  point, 
said:  "The  subject  of  the  guaranty  was  the  payment  of  certain 
sums  at  certain  times,  both  absolute,  and  fixed  by  the  terms  of 
the  guaranty  itself.  It  required  no  act  of  the  plaintiff  to  pre- 
cede the  performance  by  Bailey  (principal),  except  the  permission 
for  Bailey  to  remain,  which  the  defendant  knew  had  been  given. 
If  Bailey  made  a  corresponding  agreement  to  do  wdiat  the  de 
fendant  agreed  he  should  do,  it  was  broken  by  the  mere  fact  of 
non-payment,  without  demand  upon  him.  The  same  fact  was  of 
itself  a  breach  of  the  defendant's  contract  of  guaranty.  A  for- 
mal demand  upon  Bailey  is  not  necessary  to  make  his  failure  to 
pay  the  rent  a  breach  of  his  obligation,  and  the  defendant's  con- 
tract is  simply  that  Bailey  shall  perform  his  agreement.  But 
whether  Bailey  made  such  a  corresponding  agreement  or  not,  the 
defendant,  by  his  guarantj^,  undertook  that  Bailey  should  perform 
certain  specific  acts,  and  he  is  liable  on  his  agreement  ibr  Bailey's 
failure  to  do  those  acts.  *  In  a  suit  against  a  guarantor  it  is 
nndoubtedl}^  necessary  to  allege  and  prove  a  breach  of  the  con- 
tract of  guaranty,  but  it  is  only  necessary  to  show  such  acts  as 
would  constitute  a  breach  of  the  particular  contract  in  suit.  If 
the  guaranty  be  for  the  performance  of  a  specific  act  of  another, 
and  be  absolute  in  terms,  whatever  is  sufficient  to  show  default  in 
that  other  person,  will  ordinarily  show  a  breach  of  the  contract  of 
guaranty,  and  a  right  of  action  upon  it."  ^  One  wdio  is  not  a 
party  to  a  negotiable  instrument,  but  guaranties  its  payment  by 
a  separate  contract,  is  not  discharged  by  want  of  demand  on  the 
principal  and  notice  of  dishonor  to  the  guarantor,  unless  the 
guarantor  is  injured  thereby.'^ 

§  173.      If  principal   be  insolvent  when  debt  becomes  due,    no 

1  Vinal  V.  Richardson,  13  Allen,  521;  v.  Wilkins,  1   Barn.  &  Cress.  10;    Id. 

disapproving,  Ilsley  v.  Jones,  12  Gray,  2  Dow.  &  Sy.  59;  Reynolds  v.  Doug- 

260.  lass,  12  Peters,  497;  Rhett  v.   Poe,  2 

*  Hitchcock  V.   Humfrey,  5  Man.  &  How.  (U.  S.)  457;  Walton  v.  Mascall, 

Gr.  559;  Id.  6  Scott  (N.  R.)  540:  Lew-  13  Mees.  &Wels.  72;  Gasquet  w.Thorn, 

is  V.  Brewster,  2  McLean,  21;  Hank  v.  14  La.  (Curry)  506;  contra,    Philips  v. 

Crittenden,  2  McLean,  557;  Holbrow  Asthng,  2  Taunt.  206.  ' 


248  NOTICE   AND    DEMAND. 

demand  on  him,  nor  notice  of  his  default  to  guarantor  necessary. 

— If  the  principal  dobtor  be  insolvent  when  the  debt  becomes  due, 
and  afterwards  so  remain,  no  demand  need  be  made  on  him,  or 
notice  of  his  default  be  given  the  guarantor,  in  most  cases,  where 
it  would  otherwise  be  necessary,  unless  some  loss  or  damage  can 
be  shown  to  liave  occurred  to  the  guarantor  in  consequence;*  and 
lie  Avill  only  be  discharged  to  the  extent  that  he  is  injured.^  De- 
lay and  damage  must  both  concur  to  discharged  the  guarantor. " 
In  this  respect  a  gaurantdr  differs  from  an  endorser  of  a  negotia- 
ble instrument,  for  while  an  indorser  must  be  at  once  notified, 
independent  of  all  considerations,  it  is  otherwise  with  a  guarantor.  ^ 
With  reference  to  this  subject,  it  has  been  said  that  guarantors 
"insure,  as  it  were,  the  solvencyof  their  principals,  and,  therefore, 
if  the  latter  become  bankrupt  and  notoriously  insolvent,  it  is  the 
same  thing  as  if  they  were  dead,  and  it  is  nugatory  to  go  through 
the  ceremony  of  making  a  demand  upon  them."  *  Another  court 
has  clearly  and  correctly  expressed  the  law  on  this  subject,  as  fol- 
lows: "The  guarantor  is  entitled  to  notice,  but  cannot  defend 
himself  for  want  of  it,  unless  the  notice  has  been  so  long  delayed 
as  to  raise  a  presumption  of  payment,  or  waiver,  or,  unless  he  can 
show  that  he  has  lost,  by  the  delay,  opportunities  for  obtaining 
securities,  which  a  notice,  or  an  earlier  notice,  would  have  secured 
him.  '"  If  the  notice  be  delayed  for  a  very  short  time,  but  by 
reason  of  the  delay  the  guarantor  loses  the  opportunity  of  obtain- 
ing indemnity,  and  is  irreparably  damaged,  he  would  be  discharged 
from  his  obligation.  But  if  the  delay  were  for  a  long  period,  and 
it  was  nevertheless  clear  that  the  guarantor  would  have  derived 
no  benefit  from  an  earlier  notice,  the  delay  would  not  impair  his 
obligation."^     When  the  guaranty  is  such  from  its  terms,  or  oth- 

^  Louisville  Manf.  Co.  v.  Welcli,  10  155  ;    Fear  v.  Dunlap,  1  Greene  (Iowa) 

How.  (U.  S.)  461;    Johnson  v.   Wil-  331;  Fuller  v.   Scott,   8  Kansas,   25; 

marth,  13  Met.  (Mass.)  416;  Bank  v.  Wildes  v.  Savage,  1  Story,  22.    To  the 

Knotts.  10  Rich.  Law  (So.  Car.)  543;  same  effect,  see  many  other  cases  cited 

Leech  v.  Hill,  4  Watts  (Pa.)  448;  Sko-  in  this  chapter  and  other  points, 

field  V.  Haley,   22  Me.  164;  Beebe.  ??.  ^Woodson    v.   Moody,    4    Humph. 

Dudley,  26  New  Hamp.  249;  Farmers  (Tenn.)  303. 

&  Mechanics   Bank  v.   Kercheval,   2  ^  Gibbs  v.  Cannon,  9  Serg.  &  Rawle 

Mich.  504;  Union  Bankt?.  Coster's  Exr.  (Pa.)  198;  Overton  v.  Tracey,  14  Serg. 

3  New  York,  203;  Wolfe  v.  Brown,  5  &  Rawle  (Pa.)  311. 

Ohio  St.  304;  Reynolds  v.   Douglass,  ^  March  «.  Putney,  56  New  Hamp. 

12  Peters,  497;    Gillighan  v.  Board-  34,  per  Stanley,  J. 

man,  29  Me.  79;  Bashford  r.  Shaw,  4  ^Second  National  Bank  v.  Gaylord, 

Ohio  St.  264;  Voltz  v.  Harris,  40  111.  34  Iowa,  246,  per  Day,  J. 


KEASONABLE    TIME   FOE    GIVING   KOTICE.  249 

erwise,  that  notice  is  necessary  to  put  the  guarantor  in  default, 
such  notice  may,  if  the  principal  be  insolvent  when  the  debt  be- 
comes due  and  so  remain,  be  given  at  any  time  before  suit 
brought,  and  the  same  diligence  is  not  required  as  in  cases  where 
the  principal  is  solvent  when  the  debt  becomes  due.  The  insol- 
vency of  the  princi  j)al  has  a  controlling  influence  on  the  question 
of  the  reasonable  time  in  which  notice  should  be  given.  ^ 

§  174.  "What  is  the  reasonable  time  vrithin  -which  notice  must 
be  given — Pleading. — No  general  rule  can  be  laid  down  as  to  the 
time  within  which  notice  of  the  acceptance  of  the  guaranty,  or 
of  the  default  of  the  j^rincipal,  must  be  given  the  guarantor 
when  such  notice  is  necessary.  All  that  can  be  said  is,  that 
the  notice  must  be  given  within  a  reasonable  time,  all  the  cir- 
cumstances of  each  particular  case  being  considered.*  What  is 
such  reasonable  time  has  been  held  to  be  a  question  of  law,' 
especially  where  there  is  no  dispute  about  the  facts.*  This 
question  can  very  seldom,  however,  be  resolved  into  a  mere  ques- 
tion of  law,  to  be  decided  by  the  court,  but  must  generally  be  a 
mixed  question  of  law  and  fact,  to  be  determined  by  the  jury  un- 
der proper  instructions  by  the  court.*  It  has  been  held  that  in 
determining  whether  notice  of  the  acceptance  of  a  continuing 
guaranty  has  been  given  within  a  reasonable  time,  reference  must 
be  had  to  the  time  of  the  acceptance  of  the  guaranty,  and  not  to 
the  last  sale  under  it.*  Where  a  guaranty  was  a  continuing  one 
for  certain  drafts  to  be  accepted,  it  was  held,  that  if  the  course 
of  dealing  between  the  parties  was  sufficient  to  justify  a  finding 
that  the  guarantor  had  notice  of  acceptance,  it  might  be  inferred 
that  notice  accompanied  each  transaction.  The  guaranty  being 
continuous,  the  notice  would  be  continuous  also.'  When  notice 
of  default  in  payment  on  the  part  of  the  principal  is  necessary  to 

^  Salem  Manf.  Co.  v.  Brower,  4  Jones  *Seaver  v.  Bradley,  6  Greenl.  (Me.) 

Law  (Nor.  Car.)  429;  Protection  Ins.  60. 

Co.  V.  Davis,  6  Allen,  54;  Pai^e  t'.  ^Lowryv.  Adams,  22  Vt.  160;  Louis- 
Parker,  8  Gray,  211;  Salisbury  r.  Hale,  ville  Manf.  Co.  r.  Welch,  10  How. 
12  Pick.  416.  See,  also,  on  this  sub-  (U.  S.)  461;  Wadsworth  v.  Allen,  8 
ject,  Reynolds  v.  Edney,  8  Jones  Law  Gratt.  (Va.)  174;  Seaver  v.  Bradley,  6 
(Nor.  Car.)  406.  Greenl.  (Me.)  60. 

2  Montgomery  r.  KeUogg,  43  Miss.  Hlussey  ».  Rayner,  22  Pick.  223. 

486;  Howe  r.  Nickels,  22  Me.  175.  '  First  National  Bank  of  Dubuque  v. 

^  Salem    Manf.   Co.     ?'.   Brower,  4  Carpenter,  41  Iowa,  518. 
Jones  Law  (Nor  Car.)  429,    Craft  v. 
Isham,  13  Ct.  28. 


250  NOTICE    AND    DEM^VND. 

change  the  guarantor,  the  declaration  shonld  aver  the  notice;  but 
a  o-eneral  statement  of  notice,  as  "of  which  premises  the  defend- 
ant liad  due  notice,"  is  sufficient."  If  notice  is  alleged  in  the  dec- 
laration when  it  is  not  necessary,  in  order  to  charge  the  guarantor, 
the  allegation  may  be  treated  as  surplussage,  and  need  not  be 
proved.' 

§  175.  How  notice  may  be  proved — What  amounts  to  waiver 
of  it. — When  notice  to  the  guarantor  is  necessary  in  order  to 
charge  him,  such  notice  need  not  be  proved  by  direct  evidence, 
but  may  be  inferred  from  circumstances."  The  notice  need  not 
be  in  writing  nor  in  any  particular  form."  It  may  be  given  by 
letter.^  It  need  not  be  given  by  the  creditor.  If  knowledge  is 
brought  to  the  guarantor  in  any  manner  he  can  protect  himself.^ 
It  may  be  inferred  from  what  took  place  at  the  time  of  giving 
the  guaranty,  subsequent  casual  conversations  of  the  guarantor 
with  third  persons,  and  his  conduct  and  remarks  in  reference  to 
the  collection  of  the  demand  of  the  person  for  whose  benefit  the 
,  guaranty  was  given.'  It  is  sufficient  if  the  notice  is  given  by 
the  person  for  whom  the  guarantor  became  holden.*  Notice  of 
"  about  the  amount "  of  goods  furnished  under  a  guaranty  is 
sufficient.'  It  has  been  held,  that  notice  was  sufficiently  shown 
by  the  fact  that  the  guarantor  and  the  principal  were  close  neigh- 
bors and  relatives,  and  that  the  guarantor  took  other  steps  to 
further  the  credit  of  the  principal  with  the  creditor,  and  knew 
of  advances  made  by  the  creditor  to  the  principal."  Where  a 
father-in-law  lived  just  across  the  street  from  his  son-in-law,  and 
frequently  passed  his  store,  and  dealt  with  him  occasionally,  it 
was  held,  these  facts  did  not  constitute  notice  to  the  father-in-law 
of  the  acceptance  of  a  guaranty  for  goods  to  be  sold  the  son-in- 
law."  The  fact  that  the  principal  and  guarantor  were  relatives, 
and  had  been  partners,  has  been  given  weight,  and  with  other  cir- 

>  Lewis  V.  Brewster,  2  McLean,  21;  S.  (So.  Car.)  410  ;  Oaks  v.  Weller,  16 

Oaks  V.  Weller,  16  Vt.  63.  Vt.  63. 

^  Gibbs  V.  Cannon,  9  Serg.  &  Rawle  '  Woodstock  Bank  v.   Downer,    27 

(Pa.)  198.  Vt.  539. 

2  Rankin  v.  Childs,  9  Mo.  665;  Law-  s  Qaks  v.  Weller,  16  Vt.  63;  Noyes  v. 

ton  V.  Maner,  9  Rich.  Law  (So.  Car.)  Nichols,  28  Vt.  159. 

3;35.  9  Noyes  v.  Nichols,  28  Vt.  159;  but 

■*  Reynolds  v.  Douglass,    12    Peters,  see  Spencer  v.  Carter,  4    Jones  Law 

497.  (Nor.  Car.)  287. 

■     « Dole  V.  Young,  24  Pick.  250.  '"  Menard  v.  Scudder,  7  La.  An.  385. 

•Griffin  v.  Rembert,  2  Rich.  Law  N.  "  Craft  v.  Isham,  13  Ct.  28. 


WAIVEK   OF    NOTICE    AND   DEMAND.  251 

ciimstances  held  to  be  sufficient  evidence  of  notice  to  the  guaran- 
tor.^ An  acknowledgment  by  the  guarantor  of  his  liability  and 
a  promise  to  pay,  suj^ersedes  the  necessity  of  any  furtlier  evidence 
of  notice  of  the  acceptance  of  the  guaranty  ;  ^  and  of  default  of 
the  principal.^  Where  the  guaranty  expressly  waives  demand 
and  notice,  the  guarantor  is  liable  to  an  action  thereon  without 
previous  demand  or  notice*/  and  in  such  case  the  guaranty  can- 
not be  contradicted  by  oral  evidence  of  a  contemporaneous  agree- 
ment to  collect  the  note  from  the  principal,  and  of  laches  in  pur- 
suing hini.^  The  guarantor  cannot  complain  of  want  of  notice 
of  acceptance  of  the  guaranty,  when  his  acts  and  declarations 
amount  to  a  waiver  of  such  notice.^ 

'  Lowry  v.  Adams,  22  Vt.  160.  *  Worcester  Co.  Institution  v.  Davis, 

2  Peck  V.  Barney,  13  Vt.  93.  13  Gray,  531. 

=  Breed  v.  HHlhouse,  7  Ct.  523.  « Trefetlien  v.  Locke,  16  La.  An.  19 
*  Bickford  v.  Gibbs,  8  Cush.  154. 


CHAPTER  IX. 


OF    THE  EIGHTS  OF   THE  SURETY  OE  GUAEANTOE    AGAINST 
THE  PEINCIPAL. 


Section. 
Promise  by  principal  to  indem- 
nify surety  implied.      When 
cause   of    action    accrues    to 
surety        ....  176 

Surety  may  pay  by  instalments 
and  sue  principal  for  every  in- 
stalment. Implied  contract  of 
indemnity  arises  when  surety 
becomes  bound  .  .  .  177 
Surety  who  pays  the  debt  may 
sue  principal  in  assumpsit,  and 
is  entitled  to  full  idemnity 
from  all  or  any  one  of  the  prin- 
cipals ....  178 
When  joint  sureties  can,  and 
when  they  cannot,  maintain 
joint  suit  for  indemnity  .  179 
Surety  who  has  not  been  re- 
quested to  become  such,  cannot 
recover  indemnity.  Surety  who 
pays  may  immediately  sue 
principal  without  demand  or 
notice  ....  180 
Surety  who  pivys  the  debt  with 
his  own  note  or  property,  may 
at  once  sue  the  principal  for 
indemnity  ....  181 
Surety  who  extinguishes  the  debt 
for  less  than  the  full  amount, 
can  only  recover  from  the  prin- 
cipal the  value    of  what  he 

paid 182 

Surety  can  only  recover  from 
principal  the  amount  paid,  and 
not  consequential  or  indirect 
damages  ....  183 
Effect  of  judgment  against  surety 
on  liability  of  principal  for  in- 

(2 


Section 
demnity;     notice;     statute    of 
limitations,  etc.        .        .        .     184 

How  claim  of  surety  against  prin- 
cipal affected  by  usury.  Wager    185 

When  surety  of  one  partner  en- 
titled to  recover  indemnity 
from  the  firm         .        .        .180 

When  principal  liable  to  surety 
for  costs  paid  by  surety        .     187 

Mortgage  for  indemnity  of  surety 
valid.      What  it  covers         .     188 

Effect  of  the  bankruptcy  of  the 
principal  on  the  surety's  claim 
for  indemnity         .         .        .     189 

When  surety  may  by  express  con- 
tract recover  indemnity  from 
principal  before  paying  the 
debt.  Mortgage  of  indemnity, 
etc 190 

When  special  contract  of  indem- 
nity will  not  authorize  surety 
to  recover  before  paying  the 
debt,  etc 191 

Surety  may,  before  paying  the 
debt,  bring  suit  in  chancery  to 
compel  principal  to  pay  it        .     192 

Cases  in  which  surety  may  have 
relief  in  equity  before  paying 
the  debt        ....     193 

Cases  in  which  a  surety  cannot 
recover  indemnity  from  the 
principal         ....     194 

Set-off.  Surety  may  bid  at  ex- 
cution  sale  of  principal's  prop- 
erty. Surety  may  assign  his 
claim  against  the  principal,  etc.     195 

When  insolvent  principal  cannot 
collect  debt  due  him  by  surety. 

52) 


PROMISE    TO    INDEMNIFY    IMPLIED. 


253 


Section. 

Verbal  guarantor  who  pays 
debt  may  recover  indemnity. 
Other  cases      ....     196 

Surety  on  note  who  pays  without 
notice  of  failure  of  considera- 
tion, may  recover  indemnity. 
When  surety  who  has  joined 


Section, 
in    fraudulent    scheme    with 
principal  may  recover  indem- 
nity.    Other  cases         .         .     197 

Other  cases  as  to  rights  of  surety 
against  principal       .        .        .     198 

Statute  of  limitations  as  between 
surety  and  principal        .        .     199 


§  176.  Promise  by  principal  to  indemnify  surety  implied 
— "When  cause  of  action  accrues  to  surety. — Upon  payment 
by  the  surety  or  guarantor  of  the  debt  for  which  he  is  bound,  the 
same  being  then  due,  a  right  of  action  for  reimbursement  imme- 
diately arises  in  his  favor  and  against  the  principah  In  the  ab- 
sence of  an  express  agreement  the  law  implies  a  promise  of  in- 
demnity on  the  part  of  the  principal.  If  the  debt  is  due,  the 
right  of  action  on  this  implied  promise  accrues  to  the  surety  or 
guarantor  at  the  time  he  pays  the  debt,  or  a  part  of  it,  and  not 
before.'  Consequently  a  surety  cannot  commence  an  attachment 
suit  against  his  principal  before  the  note  he  has  signed  is  due, 
and  before  he  has  paid  it,  under  the  provision  of  a  statute  allow- 
ing ^n  attacliment  to  be  brought  in  certain  cases  where  "  noth- 
ino;  but  time  is  wantino;  to  fix  an  absolute  indebtedness."  Here 
something  besides  time  is  wanting,  for  the  principal  may  pay  the 
debt  when  due  and  the  surety  never  be  damnified.'  Judgment 
was  obtained  against  a  surety  on  a  note,  which  he  paid.  The 
amount  of  the  note  was  within  the  jurisdiction  of  a  justice  of 
the  peace,  but  the  amount  of  the  judgment,  and  which  was 
paid,  was  not.  Held,  the  surety  could  not  sue  for  indemnity 
before  a  justice,  as  his  cause  of  action  arose  upon  payment  of 
the  judgment  and  was  for  the  amount  paid.^  A  surety  who 
had  not  paid  the  debt  for  which  he  had  become  bound,  had  ef- 
fects of  the  principal  in  his  hands  which  had  not  been  left  with 
him  for  his  indemnity.  He  was  summoned  as  garnishee  of  the 
principal,  and  it  was  held  that  he  was  liable  even  though 
he  was  afterwards  sued  for,  and  obliged  to  pay,  the  debt  of  the 
principal.  He  had  no  right  of  action  against  the  j^rincipal 
when  summoned  as  garnishee.'' 


■ '  Pigou  V.  French,  1  Washington, 
(U.  S.)  278;  Ford  v.  Stobridge,  Nelson 
24;  Forest  v.  Shores,  11  La.  (Curry) 
416. 


If  the  surety  takes  a  bond  of 

^  Dennison  v,   Soper,  33  Iowa,  183. 
3  Blake  v.  Downey,  51  Mo.  437.  ■ 
*  Ingalls  V.  Dennett,  6  Greenl.  (Me.) 
79. 


254  EIGHTS   OF   SURETY    AGAINST    PEINCIPAL. 

indemnitv  from  tlie  principal,  it  has  been  held  that  he  cannot 
upon  i^ayin^  the  debt  sue  the  principal  upon  an  implied  promise, 
but  is  confined  to  his  remedy  on  the  bond  upon  the  ground  that 
"  Promises  in  law  only  exist  where  there  is  no  express  stipula- 
tion." '  But  it  has  been  held  that  where  a  surety  takes  security 
for  his  indemnity  from  a  stranger,  the  presumption  is  that  it  is 
cumulative,  and  the  implied  obligation  of  the  principal  to  indem- 
nify the  surety  is  not  waived  or  merged.^  The  implied  promise 
of  indemnity  arises  in  favor  of  the  surety,  who  pays  the  debt 
without  suit  against  him.'  The  surety  may  without  the  request 
of  the  principal,  pay  the  debt  before  it  is  due,  and  after  it  is  due 
sue  the  principal  for  indemnity.  In  such  case  the  cause  of  action 
accrues  to  the  surety  at  the  time  the  debt  becomes  due.*  Witli 
reference  to  this  matter,  an  eminent  judge  has  said:  "Why  may 
not  a  surety  take  measures  of  precaution  against  loss  from  a 
change  in  the  circumstances  of  his  princij^al,  and  accept  terms 
of  compromise  before  the  day  which  may  not  be  attainable  after 
it?  He  may  ultimately  have  to  bear  the  burden  of  the  debt,  and 
may  therefore  provide  for  the  contingency  by  reducing  the  weight 
of  it.  Nor  is  he  bound  to  subject  himself  to  the  risk  of  an 
action  by  waiting  till  the  creditor  has  a  cause  of  action.  He 
may,  in  short,  consult  his  own  safety,  and  resort  to  any  meas- 
ure calculated  to  assure  him  of  it,  which  does  not  involve  a 
wanton  sacrifice  of  the  interests  of  his  principal."  ^ 

§  177.  Surety  may  pay  by  instalments,  and  sue  principal  for 
every  instalment  —  Implied  contract  of  indemnity  arises  ■when 
surety  becomes  bound. — When  the  debt  becomes  due  the  surety 
may  pay  a  part  of  it,  and  immediately  sue  the  principal  for  the 
amount  so  paid.  If  he  pays  different  parts  at  different  times,  he 
may  sue  the  principal  for  each  part  when  he  pays  it.  This  is 
not  making  several  claims  of  one,  because  the  debt  due  the  cred- 
itor is  not  the  surety's  cause  of  action.  His  cause  of  action  is 
the  payment  which  he  has  made  for  the  principal,  and  it  is  com- 
plete the  instant  he  makes  the  payment.^     "  However  convenient 

'Toussaintv.  Martinnant,   2  Durn.  ^Gibson,  C.  J.,  in  Craig  t\  Craig,  5 

&  East,  100,  per  BuUer,  J.  Rawle  (Pa.)  91. 

» Wesley  Church  v.  Moore,  10  Pa.  «  Bullock  v.  Campbell,  9  Gill  (Md.) 

St.  273.  182  ;    Williams,   Admr.  v.   Williams' 

"  Mauri  V.  Heffeman,  13  Johns.  58.  Admr.  5  Ohio,  444 ;  Pickett  v.  Bates,  3 

*  White  V.  Miller,  47  Ind.  385;  Til-  La.  An.  627. 
lotson  V.  Rose,  11  Met.  (Mass.)  299. 


PAYMENT    BY    INSTALMENTS.  255 

it  might  be  to  limit  the  number  of  actions  in  respect  of  one 
suretyship,  there  is  no  rule  of  law  which  requires  the  surety  to 
pay  the  whole  debt  before  he  can  call  for  reimbursement."  *  A 
surety  paid  the  creditor  part  of  the  amount  due  on  a  note  with 
a  view  of  reducing  it  within  the  jurisdiction  of  a  justice  of  the 
peace,  and  sued  the  principal  for  the  sum  so  paid.  Held,  that 
as  he  was  bound  for  the  debt,  he  had  a  right  to  make  a  partial  pay- 
ment and  recover  the  amount  paid  without  regard  to  the  intent 
with  which  the  payment  was  made.''  Although  the  surety  can- 
not, in  the  absence  of  express  contract,  sue  the  principal  for 
indemnity  before  he  actually  pays  the  debt,  yet  the  implied  con- 
tract for  indemnity  arises  immediately  upon  the  surety  becoming 
bound.  The  law  upon  this  point  has  been  thus  stated  :  "  It  is 
clear  that  the  contract  of  a  principal  with  his  surety  to  indem- 
nify him,  for  any  payment  which  the  latter  may  make  to 
the  creditor,  in  consequence  of  the  liability  assumed,  takes 
effect  from  the  time  when  the  surety  becomes  responsible 
for  the  debt  of  the  principal.  It  is  then  that  the  law 
raises  the  implied  contract  or  promise  of  indemnity.  'No  new 
contract  is  made  when  the  money  is  paid  by  the  surety,  but  the 
payment  relates  back  to  me  time  when  the  contract  was  entered 
into  by  which  the  liability  to  pay  was  incurred.  The  payment 
only  fixes  the  amount  of  damages  for  which  the  principal  is  lia- 
ble under  his  original  agreement  to  indemnify  the  surety."  ^  This 
was  held  in  a  case  where  the  question  was  whetlier  the  principal 
was  entitled  to  a  homestead.  The  same  principle  was  held  where 
a  voluntary  conveyance  was  made  by  the  principal  after  the 
surety  became  bound,  but  before  he  paid  the  debt,  and  the  con- 
veyance was  set  aside  at  the  suit  of  the  surety.*  A  was  indebted 
to  B  in  $100,  but  he  was  surety  for  B  for  $500.  B  conveyed  all 
his  accounts  to  an  assignee,  before  A  paid  anything  on  account 
of  his  suretyship;  afterwards  A  paid  the  amount  for  which  he 
was  liable  as  surety.  Held,  the  assignee  could  recover  nothing 
from  A.  The  court  said:  "We  think  there  exists  in  a  surety,  an 
equity  from  the  time  of  his  assuming  the  relation,  by  virtue  of 
the  implied  undertaking  on  the  part  of  the  principal  to  see  him 
indemnified,  and  that  although  no  prefect  right  of  action  accrues 

'  Davies  v.  Humphreys,  6  Mees.  &  ^Per  Bigelow,  J.,  in  Eice  v.  South- 

Wels.  153,  per  Parke,  B.  gate,  16  Gray,  142. 

•^  Hall  V.  Hall,  10  Humph.  (Tenn.)  *Choteau  r.Jones,  11  111.  300. 
352. 


25G  EIGHTS   OF    SURETY    AGAINST    PKIKCIPAL. 

until  actual  payment,  still  such  payment  lias  such  reference  to  the 
original  undertaking  of  suretyship),  that  it  overrides  any  equi- 
ties of  a  subsequent  date."  ' 

§  ITS.  Surety  who  pays  the  debt  may  sue  principal  in  assump- 
sit, and  is  entitled  to  full  indemnity  from  all  or  any  one  of  the 
principals. — The  Surety  or  guarantor  who  has  paid  the  debt  of 
the  jirincipal,  may  maintain  an  action  of  assumpsit  against  the 
principal  for  money  paid  at  his  request."  It  has  been  held,  that 
if  the  snrety  in  any  way  (as  by  his  land  being  sold  on  execution) 
extinguishes,  or  pays  the  debt  of  the  principal,  it  is,  so  far  as  the 
principal  is  concerned,  equivalent  to  paying  money  for  his  bene- 
fit and  at  his  request,  and  the  surety  may  maintain  general  as- 
sumpsit against  the  principal  for  money  paid.  ^  The  surety  can- 
not recover  indemnity  from  the  principal  by  an  action  in  tort.  * 
If  one  of  several  joint  guarantors  pays  the  debt  for  which  all  are 
bound,  he  has  thereby  a  separate  right  of  action  against  the  prin- 
cipal. *  The  law  implies  a  several  assumpsit  by  the  principal  to 
reimburse  the  surety  who  pays  the  debt,  and,  therefore,  if  the 
surety  who  pays  the  debt  releases  his  co-surety  from  all  claim 
for  contribution,  such  release  does  not  affect  his  claim  for  indem- 
nity against  the  principal.  *  Unless  there  is  an  express  agree- 
ment to  the  contrary,  tlie  surety  is  entitled  to  claim  indemnity 
from  all  his  principals.  Thus  certain  parties,  being  appointed 
executors  of  a  will,  part  of  them  made  a  joint  bond  as  such,  and  a 
surety  also  signed  the  bond.  Afterwards  A,  another  of  the  exe- 
cutors, signed  the  bond.  There  was  but  the  one  surety,  and,  when 
he  signed  the  bond,  he  stated  that  he  signed  it  as  surety  for  B, 
one  of  the  executors,  and  wished  the  other  executors  to  get  differ- 
ent bondsmen.  B  was  guilty  of  a  default  and  died,  and  after- 
wards judgment  was  recovered  on  the  bond  against  the  surviving 
executors,  including  A,  and  also  against  the  surety.  The  surety 
paid  the  judgment,  and  sued  all  the  surviving  executors  for  in- 

^Baraey  v.   Grover,  28  Vt.  391,  per  308;  Warrington   v.   Furbor,  8  East. 

Redfield,  C.  J.;  see,  also,  Morrow  v.  242. 

Morrow,  2  Tenn.  Ch.  R.  (Cooper)  549;  » Hulett  r.  Soullard,  26  Vt.  295. 

Loughridge    v.    Rowland,    52    Miss.  *  Ledbetter  i'.  Torney,  11  Iredell  Law 

546.  (Nor.  Car.)  294. 

'Morricev.  Redwyn,  2Bamardiston,  ^  Lowry  r.    Lumbermen's   Bank,    2 

26;  Davies  v.  Humphreys,   6  Mecs.  &  Watts  &  Serg.  (Pa.)  210. 

Wels.  153;  Ford  v.  Keith,  1  Mass.  139;  « Crowdus  v.  Shelby,  6  J.  J.  Marsh, 

Exall  V.  Partridge,   8  Dum.  &  East,  (Ky.)  61. 


JOINT    SUIT    FOK    INDEMNITY    BY    SUIIETIES.  257 

demnitj.  Held,  that  A,  by  signing  the  bond  subsequent  to  the 
time  the  surety  signed,  recognized  the  surety  as  his  surety,  and 
this  was  equivalent  to  a  previous  request,  and  that  A  and  all  the 
surviving  executors  were  liable  for  the  indemnity  of  the  surety,  * 
If  the  surety  is  bound  for  several  principals,  he  is  entitled  to  re- 
cover from  any  one  of  them  the  whole  of  what  he  has  paid,  Each 
of  the  principals  is  debtor  for  the  whole  of  the  debt  to  the  creditor, 
and  the  surety,  being  liable  for  each  of  them,  has,  by  paying  the 
debt,  freed  each  of  them  from  the  creditors'  claim  for  the  whole, 
and  consequently  has  a  right  to  recover  the  whole  amount  from 
any  one  of  them.  ^  He  may  recover  the  whole  amount  from  the 
surviving  one  of  two  principals,^  or  from  the  estate  of  a  deceased 
principal  where  there  are  several  surviving  principals.  * 

§  1*^9.  When  joint  sureties  can,  and  ■when  they  cannot, 
maintain  joint  suit  for  indemnity. — If  there  are  several  sureties 
for  tlie  same  debt,  and  each  pays  a  portion  of  it  from  his  individ- 
ual money,  they  cannot  join  in  a  suit  against  the  principal  for 
the  money  so  paid.®  "Where,  however,  the  payment  is  made  by 
several  sureties  from  a  joint  fund,  they  may  join  in  an  action 
against  the  principal.  Thus,  two  sureties  who  were  jointly  liable 
as  such  for  a  debt,  borrowed  money  to  pay  a  portion  of  it,  for 
which  they  gave  their  joint  note,  and  to  pay  the  balance  they 
gave  their  joint  note  to  the  creditor,  who  accepted  it  as  payment. 
Held,  they  might  properly  bring  a  joint  suit  for  indemnity 
against  the  principal.®  Three  parties  having  jointly  guarantied 
a  debt  and  received  back  a  mortgage  of  indemnity,  two  of  them 
paid  the  debt,  and  they  all  joined  in  a  bill  to  foreclose  the  mortgage. 
Held,  they  might  properly  do  so,''  A  judgment  was  rendered 
against  several  persons  as  heirs  of  a  surety,  and  they  gave  a  surety 

>  Babcock  v.  Hubbard,  2  Ct.  536.  Hamp.  418;  Bunker  v.  Tufts,  55  Me. 

^  Apgar's  Admrs.  v.  Hiler,  4  Zabr.  ISO. 

(N.  J.)  812;  Dickey  v.  Rogers,  19  Mar-  ®  Pearson  v.  Parker,  3  New  Hamp. 

tin  (La.)  7  N.  S.  588;  Bunce  i'.  Bunce,  366;   to  same   effect,  see  Whipple  v. 

Kirby  (Ct.)  137.  Briggs,  28  Vt.  65. 

3  Fdddle  V.  Bowman,  27  New  Hamp.  "<  Dye  v.  Mann,  10  Mich.  291.   Hold- 

236.  ing  that  sureties  who  have  paid  for 

^West  V.  Bank  of  Rutland,  19  Vt.  the  default  of  a  tax  collector,  and  been 

403.  authorized  by  statute   to  bring  suits 

^Sevier    v.    Roddie,   51    Mo.    580;  for  their  indemnity  against  persons 

Parker  v.  Leek,  1  Stew.    (Ala.)  523;  owing  taxes,  may  join  in  such  suits; 

Appleton  V.  Bascom,  3  Met.  (Mass.)  see  Prather  v.   Johnson,  3  Harr.    & 

169;   Peabody  v.  Chapman,    20  New  Johns.  (Md.)  487. 
17 


258  EIGHTS   OF    SIJKETY    AGAINST    PKIXCIPAL. 

for  a  stay  of  execution,  but  afterwards  paid  the  judgment.  Held, 
they  might  jointly  sue  tlie  principal  for  indemnity.  "  Their  lia- 
bility arose  upon  the  fact  that  we  must  presume  that  his  (the 
ancestor's)  estate  came  into  their  hands;  otherwise  they  would 
not  have  been  responsible.  It  was  their  joint  debt,  then,  as 
heirs,"  and  having  made  payment  jointly  they  were  entitled  to 
join  in  a  suit  for  indemnity.'  Where  several  individuals,  acting 
as  partners,  and  in  their  pai'tnershij)  name,  became  sureties  for 
another  partnership,  and  after  the  dissolution  of  both  partner- 
ships, were  called  upon  to  pay,  and  jointly  paid  the  amount  for 
which  they  were  so  liable,  it  was  held  that  they  might  maintain 
a  joint  action  for  indemnity.*  B  and  G  were  joint  sureties,  and  B 
died.  His  executor  was  a  partner  in  business  with  G,  and  the  two 
partners  paid  the  debt  out  of  their  joint  funds  as  partners.  Held, 
they  could  not  join  in  a  suit  for  indemnity.  They  were  not  joint 
sureties,  nor  was  the  money  paid  for  a  partnership  debt.  Hav- 
ing made  the  payment  on  a  matter  foreign  to  their  partnership 
concerns,  it  operated  as  a  severance  of  their  joint  interest  in  the 
money  paid.^ 

§  180.  Surety  v7ho  has  not  been  requested  to  become  such 
cannot  recover  indemnity — Surety  -who  pays  may  immediately 
sue  principal  without  demand  or  notice. — A  surety  Cannot  ordi- 
narily recover  indemnity  from  the  principal,  unless  he  became 
surety  at  the  request  of  the  principal,  either  express  or  implied.* 
After  a  bond  had  been  executed  by  principal  and  surety,  another 
person,  at  the  instance  of  the  holder,  but  without  the  knowlege 
or  consent  of  the  maker,  guarantied  the  bond  by  indorsing  on  it 
as  follows:  "This  is  a  good  bond."  He  was  compelled  to  pay 
the  bond,  and  sued  the  original  surety  for  indemnity.  Held,  he 
was  not  entitled  to  recover,  because  he  was  not  an  indorser  in  the 
usual  sense  of  that  term,  and  he  had  not  been  requested  to  be- 
become  surety  by  the  party  he  sought  to  charge.^  A  and  B 
were  principals  and  C  and  D  sureties  in  a  bond.  Before 
signing,  it  was  agreed  that  C  should  be  the  surety  of  A,  and 
D  the  surety  of  B,  but  this  did  not  appear  from  the  instru 
ment.     C  and  D  each  paid  one-half  of  the  debt,  and  A  indemni- 

'  Snider  v.  GreatbousG,  16  Ark.  72.  338;    McPlierson    v.    Meek,   30    Mo. 

-  Day  V.  Swann,  13  Me.  165.  345. 

=>  Gould  V.  Gould,  8  Cowen,  168.  »  Carter  v.  Black,  4  Dev.  &  Bat.  Law 

*Exrs.   of  White  r.  White,   30  Vt.  (Nor.  Car.)  425. 


SURETY    TAYIXG    BY    HIS    OWN    NOTE.  259 

fied  C.  Afterwards  D  sued  A  and  B  for  indemnity.  Held,  ho 
could  not  recover  anything  from  A.  The  court  said:  "  The  obli- 
gation of  principals  to  reimburse  to  securities  the  money  paid  by 
them,  is  not  founded  on  the  bonds,  which  securities  give  for  their 
principals,  but  on  the  express  contracts  of  indemnity,  which  the 
parties  make,  or  upon  the  implied  promise  raised  by  the  law  upon 
the  payment  of  money  for  another  at  his  request." '  "Where  the 
surety  of  a  surety  pays  the  debt  of  the  principal  under  a  legal 
obligation,  from  which  the  principal  was  bound  to  relieve  him, 
such  payment  is  a  sufficient  consideration  to  raise  an  implied  as- 
sumpsit on  the  part  of  the  principal  to  repay  the  amount,  although 
the  payment  was  made  without  a  request  from  the  principal.'^  A  re- 
quest may  be  inferred  from  circumstances :  Thus,  a  party  signed  an 
appeal  bond,  from  a  judgment  by  a  justice  of  the  peace,  as  surety 
for  appellants,  wlio  appeared  in  the  aj^pellate  court  and  defended  the 
suit,  and  were  beaten,  and  the  surety  had  to  pay  a  portion  of  the 
judgment.  Held,  that  from  the  fact  that  the  principal  appeared 
and  defended  in  the  appellate  court,  a  request  to  the  surety  to  be- 
come such  would  be  inferred.^  A  surety  who  has  paid  the  debt 
of  the  principal  may  at  once,  without  notice  to  him,  or  making 
any  demand  of  indemnity,  sue  him  for  reimbursement.  The 
contract  of  indenmity  "  is  supposed  to  arise  at  the  moment  when 
the  surety  contracts  his  obligation  ;  and  it  is  broken  the  moment 
when  the  surety  is  damnified,"  It  is  the  duty  of  the  principal 
to  take  notice  of  the  fact  that  the  surety  has  been  damnified.* 

§  181.  Surety  ■who  pays  the  debt  with  his  own  note  or  prop- 
erty may  at  once  sue  the  principal  for  indemnity. — The  surety 
who,  in  satisfaction  of  the  debt  of  the  principal,  gives  his  own 
note,  which  the  creditor  receives  as  payment  of  the  debt,  may 
immediately,  and  before  paying  the  note  given  by  him,  sue  the 
principal  for.  indemnity."  A  surety  gave  his  note  for  the  debt  of 
the  principal,  which  was  accepted  by  the  creditor  as  payment. 
The  surety  never  paid  the  note,  became  insolvent,  and  afterwards 

'  Hill  V.  Wriglit,    23  Ark.  530,  per  subject,  see  Warrington  v.  Furbor,  8 

Fairchild,  J.  East,  242. 

2  Hall  V.  Smith,  5  Howard  (U.  S.)  96,  '  Doolittle  v.  Dwight,  2  Met.  (Mass.) 

3  Snell  V.  Warner,  63  111.  176.  561 ;  Bone  v.  Torrey,  16  Ark.  83;  Mims 
"Ward  V.   Heniy,   5    Ct.    595  per  r.  McDowell,   4  Ga.    182;  Pearson  v. 

Bristol,   J.;    Thompson    v.    Wilson's  Parker,  3  New  Hamp.  366;  Elwood  w. 

Exr,   13  La.   (Cm-ry)   138;    Collins  t>,  Deifendorf,  5  Barb.  (N.Y.)  398;  With-^ 

Boyd,  14  Ala.  505;  Sikes  v.  Quick,  7  erly  v.  Mann,  11  Johns.  518;  Wliite  v. 

Jones  Law  (Nor.  Car.)  19;  on  same  Miller,  47  Ind.  385;  Hommellv.  Gan^ 


260  RIGHTS   OF   SUKETY    AGAINST    PKINCIPAL. 

sued  tlic  principal  for  money  paid.  Held,  he  was  entitled  to  re- 
cover. The  court  clearly  stated  the  law  on  this  subject,  and  the 
reasons  for  it  thus:  "Anything  which  the  party  paying  and  the 
party  receiving  think  proper  to  regard  as  money,  must  generall}^ 
be  so  regarded  in  a  court  of  justice.  Property  vlelivered  and  ac- 
cepted as  money,  may  be  so  considei-ed.  '•'*  Bank  bills,  which 
are  nothing  but  the  promissory  notes  of  a  corporation,  are  in  all 
the  affairs  of  life,  and  in  all  the  courts,  regarded  as  mone3\  A 
payment  of  the  debt  of  a  third  person,  at  his  request,  in  bank 
bills,  would  sustain  an  action  for  money  paid,  laid  out  and  ex- 
pended. *  If  a  surety  discharges  the  debt  of  his  principal  by 
his  own  note,  which  is  accepted  as  payment,  is  it  not  as  much 
money  paid,  laid  out  and  expended,  as  if  he  had  paid  it  in  the 
notes  of  a  bank  ? "  '  Where  the  land  of  the  surety  has  been  levied 
on,  to  satisfy  the  debt  of  the  principal,  and  has  been  applied  to 
that  purpose,  the  surety  may  recover  indemnity  in  an  action  for 
money  paid."  A  judgment  was  rendered  against  principal  and 
surety,  which  was  replevied  (stayed)  by  the  surety  alone.  The 
legal  effect  of  the  replevin  was  to  extinguish  the  judgment. 
Held,  the  surety  might  at  once  sue  the  principal  for  indemnity 
without  paj'ing  the  amount  due  on  the  replevin  bond.^  A  prin- 
cipal being  indebted  for  rent,  he  and  the  creditor  and  a  surety 
met,  and  the  surety  gave  the  creditor  a  mortgage  on  his  property 
for  an  extended  time  to  secure  the  debt,  and  the  creditor  released 
the  principal,  and  received  the  mortgage  in  full  payment  of  the 
debt.  Held,  the  surety  might  sue  the  principal  for  money  paid 
before  paying  the  mortgage.*  It  has  been  held  that  the  posses- 
sion of  a  note  by  the  surety,  which  was  signed  by  him  and  the 
principal,  was  prima  facie  evidence  that  he  had  paid  it.^  But  it 
seems  that  in  order  to  have  this  effect  it  must  also  be  shown  that 
the  note  had  been  delivered  to  the  payees,  and  was  at  one  time 
their  property.^ 

well,  5  Blackf.  (Ind.)5;  contra,  where  ^McVicar  v.  Royce,  17  Up.  Can.  Q. 
the  note  given  by  the  surety  was  non-  B.  R.  529.  To  the  effect  that  the  sure- 
negotiable,  Pitzer  V.  Harmon,  8  ty  cannot  sue  the  principal  for  money 
Blackf.  (Ind.)  112;  Bennett  v.  Bucha-  paid  when  he  has  made  payment  by 
nan,  3  Ind.  47.  his  bond,  see  Boulware  v.  Robinson,  8 

^  Peters  r.  Barnhill,  1  Hill  Law  (So.  Texas,   327;    Morrison  v.   Berkey,    7 

Car.)  237,  per  O'Neall,  J.  Serg.  &  Rawle  (Pa.)  238. 

2 Lord  V.  Staples,  23 New Hamp.  448;  » Reynolds  v.  Skelton,  2  Texas,  516. 

Bonney  v.  Seely,  2  Wend.  481.  ^Landnim  v.  Brookshire,  1  Stewart 

»  Burns  v.  Parish,  3  B.  Mon.  (Ky.)  8.  (Ala.)  252. 


SURETY  CAN  ONLY  EECOVEE  VALUE  OF  PAYMENT.      261 

§  182.  Surety,  vrho  extinguishes  the  debt  for  less  tllan  the  full 
amount,  can  only  recover  from  principal  the  value  of  vrhat  he 
paid. — If  the  surety  extinguishes  the  debt  of  the  principal  for 
any  sum  less  than  the  full  amount  thereof,  he  can,  in  the  absence 
of  express  contract,  only  recover  from  the  principal  the  amount 
paid  by  him,*  and  interest  thereon.^  The  implied  contract  is, 
that  the  surety  shall  be  indemnified  only,  and  he  will  not  be  al- 
lowed to  speculate  out  of  his  j)rincipal.  If  he  pays  in  depre- 
ciated bank  notes,  or  other  money  which  is  below  par,  but  is 
taken  by  the  creditor  at  par,  he  can  only  recover  from  the  prin- 
cipal the  par  value  of  such  money.^  If  he  pays  in  land  he  can 
only  recover  the  value  of  the  land.  "  He  is  entitled  to  recover 
the  amount  paid,  not  the  amount  extinguished  by  that  payment."* 
A  surety  paid  the  debt  of  his  principal  to  a  bank,  a  small  por- 
tion in  bills  of  the  bank,  and  the  balance  by  his  note  to  the  bank. 
During  all  that  time,  the  notes  of  the  bank  were  worth  only  fifty 
cents  on  the  dollar,  but  the  bank  received  them  at  par  for  debts 
due  it.  Held,  that  as  the  bank  had  received  the  note  of  the  surety 
as  payment  of  the  debt,  he  might,  before  paying  the  note,  sue 
the  principal  for  indemnity,  but  could  only  recover  fifty  j^er  cent, 
of  the  amount  of  the  note  and  the  actual  value  of  the  money  he 
had  paid,  that  being  the  extent  of  his  damage.^  If  the  surety, 
who  compounds  a  debt  for  which  his  principal  and  himself  have 
become  jointly  liable,  takes  an  assignment  of  the  debt  to  a 
trustee  for  himself,  he  can  only  claim  against  his  principal  the 
amount  which  he  has  paid.  He  occupies  in  that  regard,  the 
same  position  as  an  agent,  and  cannot  speculate  out  of  his  prin- 
cipal. "  It  is  on  a  contract  for  indemnity  that  the  surety  be- 
comes liable  for  the  debt.  It  is  by  virtue  of  that  situation,  and 
because  he  is  under  an  obligation  as  between  himself  and  the 
creditor  of  his  principal,  that  he  is  enabled  to  make  the  arrange- 

'  Eaton   V.    Lambert,  1  Nebraska,  Marsh  (Ky.)    457;    Hall's  Admr.    v. 

339;  Pickett  «J.  Bates,  3  La.  An.   627;  CresweU,  12,  Gill  &  Johns.  (Md.)  36; 

Coggeshall  v.   Ruggles,   62  111.  401;  Crozier  v.   Gra.yson,  4  J.   J.   Marsh, 

Crozier  v.  Grayson,   4    J.   J.  Marsh  (Ky.)  514;  Butler  v.   Butler's  Admr. 

(Ky.)  514;  Blow  v.  Maynard,  2  Leigh  8  West  Va.  674;  Feamster  v.  Withrow, 

(Va.)  29.                                             '  9  West  Va.  296. 

2  Hicks  V.  Bailey,  16  Tex.  229;  Miles  *  Bonney  v.  Seely,  2  Wend.  481,  per 

V.  Bacon,  4  J.  J.  Marsh  (Ky.)  457.  Savage,  C.  J. 

^Kendrick    v.    Forney,    22    Gratt,  ^Jordan  Admr.   v.  Adams,  7  Ark. 

(Va.)  748;  Miles  v.  Bacon,   4,   J.  J.  (2  Eng.)  348. 


203  EIGHTS    OF    SL'KETY    AGAIXST    nilXCIPAL. 

inent  witli  that  creditor.     It  is  liis  duty  to  make  tlie  best  terms 
Jie  can  for  tlie  person  in  whose  behalf  he  is  acting."  ^ 

^  183.  Surety  can  only  recover  from  principal  the  amount 
paid,  and  not  consequential  or  indirect  damages. — In  tlie  ab- 
sence of  an  express  agreement  to  the  contrary,  a  surety  who  has 
paid  the  debt  of  his  principal  can  only  recover  from  the  principal 
the  amount  paid  by  him.  He  cannot  recover  anything  for 
what  he  has  been  obliged  to  sacrifice,  by  selling  his  property  for 
less  than  its  value,  nor  for  any  incidental  loss.  "  To  these 
disadvantages  he  voluntarily  exposes  himself  when  he  becomes 
suret}',  and  the  law  affords  him  no  relief  against  his  principal  for 
these  consequential  damages.  ^  To  establish  a  different  rule 
would  create  endless  confusion,  collusion,  combination  and  fraud. "^ 
He  cannot,  when  he  has  not  paid  the  debt,  but  has  been  dis- 
charged under  an  insolvent  act,  recover  from  the  principal  dam- 
ages which  he  has  suffered  by  being  imprisoned  on  account  of  the 
debt.^  He  may  agree  with  his  princi23al  upon  a  certain  price  for 
the  use  of  his  credit,  but  unless  there  is  a  special  agreement,  he 
can  recover  nothing  for  it.  It  has  been  beld  that  where  there  is 
an  express  agreement  that  something  shall  be  paid,  nothing  can 
be  recovered  unless  the  sum  to  be  paid  is  fixed  by  the  agreement." 
A  party  became  surety  in  a  duty  bond  to  tlie  United  States,  which 
was  captured  in  time  of  war  by  the  English,  and  by  them  a  capias 
was  issued  against  the  obligors  in  the  bond.  The  surety  fled, 
to  avoid  being  arrested,  and  thereby  his  business  was  broken  up, 
and  he  was  put  to  great  expense,  and  not  having  paid  tlie  bond, 
he  sued  certain  parties  for  indemnity,  who  had  agreed  to  save 
him  harmless.  Held,  he  was  not  entitled  to  recover.  The  court 
said  that  if  a  surety  is  broken  up  by  paying  the  debt  of  his  prin- 
cipal, he  cannot  recover  for  such  consequential  damages.  "  Flight 
to  avoid  payment  of  the  debt,  is  an  accident  wholly  unforeseen, 
and  its  consequences  cannot  be  considered  as  j)rovided  for.  The 
principal  had  a  right  to  calculate  upon  his  surety's  ability  to  pay, 

^  Reed  v.  Norris,  2  Mylne  &  Craig,  holding  it  for  the  full  amount,  the 

261,  per  Lord  Cottenham,  C;   contra,  same  as  a  stranger  might. 

Blowt;.   Maynard,  2  Leigh  (Va.)  29,  ^y^nce  v.   Lancaster,  3  Haywood, 

where  it  is  said  that  there  is  nothing  in  (Tenn  )  130,  per  Roane,  J. 

the  relation  of  principal    and  surety  "  Powell  v.  Smith,  8  Johns.  249. 

which  will  prevent  the    surety  from  ^Perrine  v.  Hotchkiss,  58  Barb.  (N. 

buying  the  claim  against  the  principal,  Y.)  77. 
and  taking  an  assignment  of  it  and 


JUDG^tlENT    AGAINST    SUllETY,    NOTICE,    ETC.  263 

and  did  not  stipulate  to  save  Inni  harmless  from  anything  but  the 
payment  of  money.'" 

§  184.  Eflect  of  judgment  against  surety  on  liability  of  prin- 
cipal for  indemnity — Notice — Statute  of  Limitations,  etc. — Tlie 
surety  on  a  note,  who,  without  knowing  of  a  defense,  has  let 
judgment  go  against  him  by  default,  and  has  paid  the  judg- 
ment, may  recover  indemnity  from  the  jDrincipal,  notwithstand- 
ing the  fact  that  the  principal  who  was  sued  at  the  same  court 
in  another  suit,  by  defending  the  same,  obtained  a  judgment 
in  his  favor.  "To  the  suggestion  that  the  surety  might  have 
resisted  and  defeated  the  recovery,  he  may  reply  tliat  he  was 
a  stranger  to  the  consideration  of  the  note,  and  was  privy  to  noth- 
ing more  than  the  terms  of  an  absolute  obligation,  which  he  bound 
himself  to  make  good,  if  not  punctually  fulfilled.  But  if  he  had 
been  made  priv^y  to  the  principal's  defense,  then  he  might  have 
lost  his  right  to  redress."  ^  So,  where  principal  and  surety  were 
sued  on  ,a  note,  and  the  signature  of  the  principal  not  being 
proved  on  the  trial,  judgment  was  had  against  the  surety  alone, 
which  he  paid,  it  was  held  that  he  might  recover  indemnity  from 
the  principal.^  If  the  principal  has  notice  of  the  suit  against  his 
surety,  he  is  bound  by  the  result  of  the  litigation,  and  a  foreign 
judgment  has  tlie  same  effect  in  this  regard,  as  one  of  the  courts 
in  which  the  suit  for  indemnity  is  brought.*  In  such  case,  the 
principal  cannot  complain  that  the  suit  was  un':-killfully  defended 
by  the  surety.^  The  fact  that  when  a  surety  is  sued,  he  fails  to 
notify  his  principal  of  such  suit,  will  not  preclude  him  from  re- 
covering indemnity.®  If  the  surety  on  a  bond  which  ought 
probably  to  have  been  avoided  on  the  ground  of  illegality  in  the 
consideration,  has  made  a  reasonable  defense  in  a  suit  brought  on 
the  bond,  and  has  been  defeated  and  paid  the  judgment,  he  may 
recover  indemnity  from  the  principal.'  A  surety  sued  in  one 
state  on  a  warranty  of  a  slave  there  made,  may  in  another  state 
recover  against  his  principal,  who  had  notice  of  the  pendency  of 
such  suit,  whatever  is  legally  adjudged  against  the  surety  by 

^Ha3^dea    v.   Cabot,    17  Mass.    169  571.     See,  also,  on  this  subject,  Hare 

per  Parker,  C.  J.  v.  Grant,  77  Nor.  Car.  203. 

^  Stinson  v.  Brennan,  Cheves  Law  ®  Rice  w.  Rice,  14  B.  Mon.  (Ky.)  335. 

(So.  Car.)  15,  per  Butler,  J.  ^Williams    v.    Greer,    4  Haywood 

3  Peters  v.  BarnhiU,  1  Hill  Law  (So.  (Tenn.)  235. 

Car.)  234.  '  Montgoraeiy    v.   Russell,    10    La. 

*  Konitzky  v.  Meyer,  49  New  York,  (Curry)  330. 


264  EIGHTS    OF   SURETY    AGAINST    PEINCIPAL. 

the  laws  of  the  state  in  which  the  suit  against  him  was  brought.' 
The  administratrix  of  a  surety  was  sued  for  the  debt  of  the  prin- 
cipal after  it  was  barred  by  the  statute  of  limitations  as  to  the 
estate  of  the  surety,  but  before  it  was  barred  by  the  statute  as 
against  the  principal.  Instead  of  pleading  the  statute,  she  sub- 
mitted the  matter  to  referees,  who  awarded  that  she  should  pay 
the  debt,  which  she  did.  Held,  the  principal  was  liable  to  reim- 
burse the  money  so  paid.  The  principal  was  liable  to  pay  the 
debt,  and  it  made  no  difference  to  him  that  the  surety  had  done 
so,  without  insisting  on  the  bar  of  the  statute."''  But  where  a 
party  was  surety  for  another  in  a  bond  replevying  an  execution, 
and  by  statute  in  such  case,  if  an  execution  was  not  issued  by  the 
creditor  within  one  year  after  he  had  a  right  to  issue  it,  the  sure- 
ty was  discharged,  and  execution  was  not  so  issued,  and  the  surety, 
after  he  was  discharged  by  the  terms  of  the  law,  paid  the  debt, 
without  having  it  assigned  to  him,  it  was  held  he  could  not  re- 
cover indemnity  from  the  principal.  As  he  was  under  no  obliga- 
tion to  pay  the  debt,  the  law  would  not  imply  a  contract  of  in- 
demnity.^ 

§  185.  How  claim  of  surety  against  principal  affected  by 
usury — "Wager. — If  ^he  surety  to  a  contract  tainted  with  usury 
of  which  he  has  knowledge,  pays  the  usury,  it  has  been  held  that 
he  cannot  recover  such  usury  from  the  principal,  but  can  only 
recover  what  the  creditor  could  have  recovered.*  But  where  the 
surety  on  an  usurious  note,  w-ho  did  not  know  of  the  usury  when 
he  signed  it,  but  had  knowledge  of  the  fact  when  he  j)aid  it,  sued 
the  principal  for  indemnity,  it  was  held  he  was  entitled  to  re- 
cover unless  he  had  been  notified  by  the  principal  not  to  pay  the 
the  note  before  he  paid  it.  The  principal  might  avail  himself 
of  the  statute  against  usury,  but  was  not  obliged  to  do  so,  and 
the  surety  could  not  know  his  intention  in  that  regard,  unless  no- 
tified thereof.^  So,  where  the  creditor  had  recovered  a  judgment 
against  principal  and  surety,  and  the  surety  had  paid  the  jndg- 

'  Thomas  v.   Beckman,    1  B.  Mon.  ^  Ford  v.  Keith,  1  Mass.  139.     For  a 

(Ky.)  29.  case  holding   (under  peculiar  circum- 

'  Shaw  V.  Loud,  12  Mass.  447.  stances)  that  a  suretj^  can  recover  in- 

^  Kimble  r.    Ckimmins,  3  Met.  (Ky.)  demnity  from  the  principal   for  usury 

327.  which  he  has  been  compelled  to  pay, 

^  Jones  V.  Joyner,  8  Ga.   562;  Mims  see  Kock  v.  Block,  29  Olaio  St.  565. 
V.  McDowell,  4  Ga.  182;  Whitehead  v. 
Peck,  1  Kelly  (Ga.)  140. 


SURETY  OF  PAETNER  ENTITLED  TO  INDEMNITY  FROM  FIRM.      2G5 

ment,  it  was  held  that  t]ie  principal  could  not  set  up  against  tlie 
claim  of  tlie  surety  for  indemnity,  the  fact  that  part  of  the  judg- 
ment was  for  usury.'  A  surety  having  become  liable  on  a  note, 
the  principal  executed  to  him  a  bill  of  sale  of  chattels  for  his  in- 
demnity. Held,  the  bill  of  sale  was  executed  upon  sufficient 
consideration,  even  though  the  original  note  was  usurious,  unless 
the  surety  was  privy  to  the  usury.^  "Where  a  note  was  given  to 
secure  money  bet  in  the  State  of  Missouri,  on  the  election  of  "a 
President  of  the  United  States  (such  bet  being  prohibited  by 
law),  and  a  surety  on  the  note,  who  knew  when  he  signed  it  the 
consideration  for  which  it  was  given,  was  comjjelled  by  legal  pro- 
cess in  a  foreign  jurisdiction  to  pay  the  same,  it  was  held  he 
could  not  recover  indemnity  from  the  principal.  He  was  privy 
to  an  illegal  transaction,  and  could  ground  no  claim  to  relief  up- 
on it.  If  the  principal  could  be  in  this  manner  comiDclled  to 
pay,  the  policy  of  the  law  in  making  the  note  void  would  be  de- 
feated.' 

§  18G.  \Vhen  surety  of  one  partner  entitled  to  recover  indem- 
nity from  the  firm. — -When  a  partner  gives  his  individual  note, 
with  surety  for  a  debt  of  the  firm  and  the  surety  pays  it,  he  mav 
recover  indemnity  at  law  from  all  the  members  of  the  firm.^  The 
same  thing  was  held  wliere  the  note  was  under  seal.^  A  and  B 
were  partners,  and  A  hired  help  for  which  the  firm  would  on  gen- 
eral principles  of  law  have  been  liable,  but  gave  his  individual 
bond  with  C  as  his  surety  for  the  hire.  C  had  the  debt  to  pay, 
and  brought  a  suit  in  equity  to  recover  indemnity  from  A  and  B. 
Held,  he  was  entitled  to  recover  from  both.*  One  of  several 
partners  executed  a  bond  in  his  individual  name  to  the  United 
States,  for  duties  on  goods  imported  on  account  of  the  partnei-ship, 
and  the  plaintiffs  executed  the  bond  as  sureties.  The  plaintiffs 
paid  the  debt  and  brought  an  action  for  money  paid  against  all 
the  partners.  Held,  tliey  were  not  entitled  to  recover,  as  there  was 
no  privity  between  them  and  the  partners,  who  did  not  sign  the 
bond.  The  bond  being  under  seal  discharged  the  claim  of  the 
United  States  for  the  duties,  and  its  remedy  was  thereafter  on  the 

>  Wade  V.  Green,  3  Humph.  (Tenn.)  ^  Burns  v.  Parish,  3  B.  Mon.  (Ky.) 

547.  But  see  Luckings'  Admr.  v.  Gegg,  8;  Hikes  v.  Crawford,  4  Bush.  (Ky.)  19. 

12  Bush  (Ky.)  298.  *  Purviance  v.  Sutherland,  2  Ohio  St. 

^  Spaulding  v.  Austin,  2  Vt.  555.  478. 

^  Harley  v.   Stapleton's  Admr.    24  *  Weaver  v.  Tapscott,  Leigh  9  (Va.) 

Mo.  248.  424. 


26G  KIGllTS   OF    SUEETY    AGAINST   PKINCirAL. 

Lond,  and  against  the  parties  alone  wlio  signed  it.  The  remedy 
of  the  sureties  was  against  the  partner  who  signed  the  bond,  al- 
tliough  the  court  in  one  case  said  it  might  be  if  such  partner  was 
insolvent,  and  the  firm  owed  him  the  sureties  could  have  relief  in 
equity.' 

§  187.  "When  principal  liable  to  surety  for  costs  paid  by  sure- 
ty.— "Whether  the  surety,  who  has  paid  costs  on  account  of  the 
debt  of  the  principal,  can  recover  such  costs  from  the  principal, 
depends  upon  the  circumstances  of  each  case.  It  has  been  held 
that  he  may  recover  from  the  principal  costs  which  he  has  in 
good  faith  incurred  and  paid,  litigating  the  claim  uj)on  which  he 
is  surety.''  An  eminent  judge,  in  discussing  this  subject,  said: 
"  If,  when  a  surety  was  sned  upon  the  debt  of  his  principal,  and 
was  unable  to  pay  it,  and  the  same  went  into  judgment  and  was 
levied  upon  his  land,  he  must  lose  all  costs  recovered,  and  the  ex- 
penses of  the  levy,  because  he  did  not  pay  the  principal's  debt 
more  promptly  tlian  the  debtor  himself,  whose  duty  it  was  to  do 
it,  and  save  the  surety  all  trouble,  it  would  certainly  aftbrd  a  re- 
markable instance  of  absurd  refinement,  not  to  say  refined  absurd- 
ity; and  if  the  debt  may  be  recovered  (by  the  surety  of  the  prin- 
cipal) as  money  paid,  so  equally  may  the  costs."  ^  Where  a  joint 
judgment  is  recovered  against  principal  and  surety,  and  the  sure- 
ty pays  the  judgment  and  costs,  he  may  recover  such  costs  from 
the  principal.  The  principal  has  a  right  to  defend  the  suit,  and 
the  surety  is  justified  in  letting  the  claim  proceed  to  judgment, 
in  the  hope  that  the  money  may  be  made  from  the  principal."  If 
the  principal  has  agreed,  in  writing,  to  save  the  surety  harmless, 
the  surety  mnj^  on  such  agreement,  recover  costs  which  he  has 
paid  on  account  of  the  principal's  debt.^  If  the  surety  on  a  note, 
who  is  indemnified  from  loss  on  account  of  his  suretyship,  incurs 
expenses  in  defending  a  suit  on  the  note,  contrary  to  th.e  expressed 
wishes  of  the  principal,  and  after  he  is  notified  by  the  principal 
that  there  is  no  defense,  he  cannot  hold  the  principal  liable  for 

'Embree   v.   Ellis,    2  Johns.    119;  ^Per  Redfield,   C.  J.  in  Huletfc  v. 

Krafts  t>.  Creighton,  3  Richardson  Law  Soiillard,  26  Vt.  295;  to  same  effect, 

(So.  Car.)  273.  see  Wynn  v.  Brooke,  5  Rawle  (Pa.) 

••'Downerr.  Baxter,  30  Yt.  467;  Ben-  106;    McKee  v.   Campbell,   27  Mich. 

nett  V.  Dowling,  22  Texas,  660.    See,  497. 

also,  on  this  subject,  Whitworth  v.  Til-  *  Apgar's  Admr.  v.  Hiler,  4  Zabris- 

■man,  40  Miss.  76;  Thomson  v.  Taylor,  kie  (N.  J.)  812. 

11  Hiui.  (N.Y.)  274.  s  Bonnoy  v.  Seely,  2  Wend.  481. 


MOETGAGE   FOE   INDEMKITY.  267 

sncli  expenses/  It  lias  been  held  that  where  a  surety  knows  there 
is  no  defense  to  the  suit  against  him,  he  can  recover  no  costs  ex-, 
cept  those  of  a  judgment  bj  default.'^  A  undertook  to  pay  cer- 
tain debts  of  B,  and  C  guarantied  A's  undertaking.  A  failed  to 
pay  one  of  the  debts,  and  B  was  sued  for  it,  and  a  judgment  was 
had  against  him  for  the  amount  due  and  costs  of  suit.  Held,  B 
could  not  recover  such  costs  from  C.  He  should  have  paid  the 
debt  without  suit,  and  prevented  the  making  of  costs,^ 

§  188.  Mortgage  for  indemnity  of  surety  valid — What  it 
covers. — Tlie  liability  of  a  surety  or  guarantor  for  the  debt  of  his 
principal  before  he  has  made  any  payment  on  account  thereof, 
is  a  sufficient  consideration  for  the  execution  of  a  mortgage  or  trust 
deed  for  his  indemnity,  and  such  mortgage  or  trust  deed  will  take 
precedence  of  any  subsequent  lien  on  the  property  encumbered 
thereby."  A  promissory  note  for  the  payment  of  a  certain  sum 
of  money,  executed  for  the  purpose  of  indemnifying  the  payee 
against  his  liability  as  a  surety  for  the  maker  of  an  administra- 
tion bond,  and  to  enable  him  to  secure  himself  by  an  attachment 
of  the  property  of  the  maker,  is  valid,  notwithstanding  the  payee 
at  the  time  of  its  execution  has  not  been  damnified.  The  exist- 
ing liability  with  an  implied  promise  to  pay  that  amount  upon 
the  principal  indebtedness,  forming  a  sufficient  consideration  for 
the  note,  and  the  note  will  be  enforced  against  the  objections  of 
other  creditors.^  Where  principal  and  sur(^y  have  signed  notes, 
and  before  the  maturity  thereof  the  principal  deposits  money  with 
the  suret}^,  upon  the  agreement  that  the  surety  shall  apply  the 
money  so  received  to  the  payment  of  the  notes,  the  principal  can- 
not afterwards  repudiate  the  agreement,  the  suretyship  being  a 
sufficient  consideration  to  support  it.^  Where  a  mortgage  is  given 
for  the  indemnity  of  a  surety,  it  remains  valid  for  that  purpose 
notwithstanding  the  evidences  of  the  debt  or  the  instruments  by 
which  the  suret}^  is  bound  may  be  changed.     This  was  held  where 

1  Beckley  v.  Munson,  22  Ct.  299.  18  New  Hamp.  209;  Bank  of  Alabama 

2  Holmes  v.  Weed,  24  Barb.  (N.  Y.)  v.  M'Dacle,  4 Port.  (Ala.)  252;  Peuning- 
546.     On  this  subject,  see  Whitwortli      ton  v.  Woodall,  17  Ala.  685. 

V.  Tilman,  40  Miss.  76.  ^Haseltine  v.  Guild,  11  New  Hamp. 

3Reflfield«.  Haight:,  27Ct.  31.  390.    To  the   same  effect,  where  the 

•*  Kramer  V.  Farmers  and  Mechanics  surety  expressly  promised  the  principal 

Bank,  15  Ohio,  253;  Uhler  v.  Semple,  to  pay  the  debt,  see  Gladwin  v.  Garri- 

5  C.  E.  Green  (N.  J.)  288;  Perkins  v.  son,  13  Cal.  330. 

Mayfield,  5  Port.  (Ala.)  182;  Hawkins  «  Mandigo  v.  Mandigo,  26  Mich.  349. 

V.  May,  12  Ala.  673;  Lane  v.  Sleeper, 


208  EIGHTS   OF    SUKKTY    AGAINST    PKINCIPAL. 

a  mortgage  was  given  conditioned  to  save  the  mortgagee  harm- 
less from  his  indorsement  of  certain  specified  notes,  and  such 
notes  as  tlicy  became  due  were  renewed  by  the  substitution  of 
other  notes  or  drafts  having  different  names  upon  them,  but  the 
obligation  of  the  mortgagee  was  preserved  through  the  whole 
series  of  renewals.^  So,  a  mortgage  to  secure  accommodation  in- 
dorsers  on  a  note  payable  to  a  particular  bank,  and  so  described  in 
tlie  mortgage,  is  valid  to  secure  the  same  indorsers,  though  that 
bank  did  not  discount  the  note,  and  another  bank  discounted  a 
similar  note  for  the  same  i3urpose  and  with  the  same  indorsers.'' 

§  ISO.  Effect  of  the  bankruptcy  of  the  principal  on  the 
surety's  claim  for  indemnity. — A  surety,  M'ho  after  the  bank- 
ruptcy of  the  principal  pays  the  debt,  may  generally  recover  in- 
demnity from  the  principal  for  the  money  so  paid.  The  reason 
is  that  until  he  has  paid  the  debt  he  usually  has  no  cause  of  ac- 
tion against  the  principal,  and  no  claim  which  he  can  prove 
against  the  principal's  estate.^  Upon  this  principle  it  has  been 
held,  that  a  person  discharged  under  an  insolvent  act,  is  liable  to 
his  surety  for  the  arrears  of  an  annuity  due  since  his  dis- 
charge, which  the  surety  has  been  obliged  to  pay.*  If,  how- 
ever, the  bankrupt  or  insolvent  act  expressly  provides  for 
the  adjustment  of  the  claim  for  indemnity  which  a  surety, 
who  is  liable  at  the  time  of  the  bankruptcy,  may  have,  by  reason 
of  afterwards  paying  the  debt,  the  terms  of  the  statute  will  of 
course  prevail.  It  has  been  held  that  such  claim  may  be  proved 
under  the  United  States  Bankrupt  Law  of  1867,  and  it  will  be 
barred  unless  it  is  proved.*  A  guardian  made  default  and  was 
afterwards  discharged  in  bankruptcy.  His  surety  was  afterwards 
compelled  to  pay  the  defalcation,  and  sued  him  for  indemnity. 
Held,  the  surety  was  entitled  to  recover,  as  debts  created  by  em- 
bezzlement were  expressly  excepted  from  the  operations  of  the 

^  Pond  V.  Clarke,  14  Ct.  334;  Smith  Gordon,  6  Johns.  126;  Emery  v.  Clarke, 

V.  Prince,  14  Ct.  472;  to  same  effect,  2  J.  Scott  (N.  S.)  582;  Comfort  v.  Eis- 

soe  Markell  v.  Eichelberger,  12  Md.  enbeis,    11   Pa.   St.    13;    Haddens   v. 

78;  Choteau  v.  Thompson,  8  Ohio  St.  Chambers,  2  Dallas  (Pa.)  236. 

424.  "jpacje  v.  Bussell,   2  Maule  &  Sel. 

« Patterson  v.  Z^Iartin,  7   Ohio,  225.  551;  Welsh  v.  Welsh,  4  Maule  &  Sel. 

2  Paul  V.  Jones,  1  Durn  &  East,  599 ;  333. 

McMullin  V.  Bank  of  Penn  Township,  ^  Lipscomb  v.  Grace,  26  Ark.  231 ; 

2  Pa.  St.  843;  Taylor  v.  Mills,  Cowper,  disapproving,  Pogue  v.  Joyner,  6  Ark. 

525;    Cake'v.  Lewis,  8  Pa.  St.  493;  (1  Eng.)  241. 
Wells  V.  Mace,  17  Vt.  503;  Buel  v. 


INDEMNITY  TO  SURETY  BEFORE  PAYMENT  OF  DEBT.     2C9 

Bankrupt  Act,  and  this  debt  was  so  created.*  If,  after  the  surety 
has  paid  the  debt,  the  principal  becomes  a  bankrupt  and  is  dis- 
charged as  such,  the  discliarge  will  bar  the  claim  of  the  surety 
against  the  principal.^ 

§  190.  When  surety  may  by  express  contract  recover  indem- 
nity from  principal  before  paying  the  debt — Mortgage  of  indem- 
nity, etc. — "While  the  surety  or  guarantor  has  usually,  in  the 
absence  of  express  contract,  no  right  of  action  against  the  prin- 
cipal for  indemnity  until  he  has  actually  paid  the  debt,  yet  he 
may  by  express  contract  be  giv^en  such  right  of  action  before  pay- 
ment of  the  debt.  Thus  where  a  bond  of  indemnity  given  to  a 
surety  on  a  lease,  was  conditioned  for  the  payment  of  the  rent, 
and  to  save  him  harmless  from  liability,  it  was  held  the  surety 
could  recover  from  the  obligor  the  amount  of  the  rent  in  arrear, 
even  though  he  had  not  himself  paid  it.  The  Court  said: 
'•  When  a  bond  is,  as  in  this  case,  conditioned  as  well  to  pay  the 
debt  or  sum  specified  as  to  indemnify  and  save  harmless  the 
obligee  against  his  liability  to  pay  the  same,  the  obligee  may 
recover  the  entire  debt  or  demand  upon  default  in  the  payment 
without  having  paid  anything."  ^  The  same  thing  was  held  where 
a  bond  to  a  sheritf  was  conditioned  to  save  him  harmless  from  all 
"loss  and  liabilities"  which  he  might  sustain  by  selling  certain 
property  levied  on  by  him,  and  a  judgment  was  recovered  against 
him  for  selling  the  property,  which  judgment  he  had  not  paid.^ 
So,  where  a  mortgage  was  given  to  indemnify  a  surety,  it  was 
held  he  mio^ht  foreclose  the  raortorage  as  soon  as  he  was  sued  for 
the  debt,  and  before  he  had  paid  it.^  Where  A,  being  the  prin- 
cipal in  a  bond,  gave  a  deed  of  trust,  one  of  the  provisions  of 
which  was  that  the  trustee  should  "  save  harmless  "  B,  who  was 
Ins  surety  in  the  bond,  and  another  provision  was  that  the 
trustee,  "  whenever  required  by  the  creditors  of  A,  or  by  any 
surety  who  may  be  threatened  with  loss  by  reason  of  his  surety- 
ship shall  proceed  to  sell  sufficient  property  to  answer  the  ends  of" 
the  deed  of  trust,  it  was  held  that  the  trustee  was  not  bound  to 

'  Halliburton  v.  Carter,  55  Mo.  435.  *  Tankersley  v.  Anderson,  4  Des.  Eq. 

^  Smith  i;  Kinney,  6  Neb.  447.  (So.  Car.)  44.     To  similar  effect,  see 

^Belloni  t;.  Freeborn,  63  New  York.  Tliurston    v.    Prentiss,     1     Manning 

383,  per  Allen,  J.  (Mich.)  193.     See,  also,  on  this  point, 

*  Jones  V.  Childs,  8  Nevada,  121.  To  Darst  v.  Bates,  51  III.  439. 
similar  effect,  see  Carman  v.  Noble,  9 
Pa.  St.  366. 


270  KIGIITS    OF    SUKETY    AGAIKST    TKINCIPAX. 

wait  till  the  surety  was  actually  dammfied,  by  having  been  com- 
pelled to  jiay  the  money,  but  that  it  was  the  duty  of  the  trustee 
to  relieve  him,  whenever  he  had  funds  for  the  purpose.  The  Court 
said  that,  in  equity,  the  money  might  be  applied  directly  to  the 
relief  of  the  surety  without  passing  into  his  hands,  and  thus  en- 
dangering the  creditor.'  Where  the  principal  placed  in  the  hands 
of  his  surety  a  horse  for  his  indemnity,  "  upon  condition,  that  if 
(he)  had  the  money  to  pay,"  etc.,  it  was  held  that  upon  the  debt 
becoming  due  and  remaining  unpaid,  the  surety  might  sell  the 
horse  and  pay  the  debt  with  the  proceeds.*  Principal  and  surety 
being  joint  makers  of  a  promissory  note,  the  principal  covenant- 
ed with  the  surety  to  pay  the  amount  specified  in  the  note  to  the 
payees  thereof  on  a  given  day,  but  made  default.  In  an  action 
on  this  covenant,  it  was  held  that  the  surety  was  entitled  to  re- 
cover the  full  amount  of  the  note,  although  he  had  not  paid  any 
of  it.'  A  surety  being  liable  upon  two  promissory  notes  due  at 
diifei'ent  times,  took  from  the  principal  a  bond  and  warrant  of 
attorney,  the  penalty  being  in  double  the  amount  of  the  two 
notes,  and  the  condition  being  for  the  payment  of  a  sum  equal  to 
the  amount  of  the  two  notes,  at  a  time  previous  to  the  maturity 
of  either.  The  first  note  became  due,  and  the  surety  was  obliged 
to  pay  it,  and  befoi-e  the  last  note  was  due,  and  while  it  was  un- 
paid, he  entered  up  judgment  on  the  bond  for  the  amount  of  both 
notes.  Held,  the  judgment  was  properly  entered,  and  might  be 
enforced  even  though  the  principal  offered  to  pay  the  surety  the 
amount  he  had  pai^  on  the  first  note.*  Where  a  party,  in  con- 
templation of  suicide,  tied  up  in  a  bundle  and  left  cash  and  notes 
indorsed  to  a  surety,  and  addressed  the  bundle  to  the  surety  with 
directions  that  as  soon  as  his  death  should  be  known  the  surety 
should,  from  the  proceeds,  indemnify  himself,  and  if  anything  re- 
mained give  it  to  the  principal's  children,  and  the  surety  re- 
ceived and  claimed  the  j)roperty,  it  was  held  he  might  retain  so 
much  thereof  as  was  necessary  for  his  indemnity,  and  this  upon 
the  ground  that,  where  a  trust  is  created  for  a  person  without  his 

*  Daniel  v.  Joyner,  3  Ired.  Eq.  (Nor.  against  the  principal  after  the  remedy 

Car.)  513.  of  the  creditor  against  the  principal 

*Birdt;.  Benton,  2  Dev.  Law  (Nor.  has    been    barred     by    that    statute. 

Car.)   179.    A  surety    who  has  been  Rucks  v.  Taylor,  49  Miss.  552. 

compelled  to  pay  the  debt  w  thin  the  ^  Looscmore  v.    Radford,  9  Mees.  & 

period  of  the   statute   of  hmitations,  Wels.  657. 

may  enforce  a  mortgage  of  indemnity  *  Smith  v.  James,  1  Miles  (Pa.)  162. 


IKDEMXITT    TO    SXEETY    BEFOEE    PAYMENT   OF    DEBT.  271 

knowledge,  lie  may  afterwards  afBrm  it.*  If  the  princij)al  ex- 
pressly agree  to  save  tlie  surety  harmless  from  all  loss  and  dam- 
age on  account  of  the  suretyship,  the  surety  may,  without  pay- 
ing the  debt,  recover  damages  for  imprisonment,  which  he  has 
suiFered  on  account  of  the  debt.^  The  allowance  by  commission- 
ers of  a  debt  of  the  principal  against  the  estate  of  a  surety,  when 
duly  reported  to  the  probate  court  and  registered  among  the 
claims  against  the  estate,  is  a  damnification,  and  will  entitle  the 
administrator  to  sue  the  principal  upon  his  special  promise  to 
"  indemnify  and.  save  harmless"  the  surety/  A  promise  by  a 
principal  to  pay  into  the  hands  of  a  surety  for  his  indemnity  the 
amount  for  which  he  is  bound,  "  whenever  the  surety  shall  be 
called  upon  by  the  creditor  for  payment,  or  shall  have  reason  to 
doubt  the  ultimate  ability  of  the  principal  to  save  him  harmless," 
is  a  valid  promise  as  against  the  creditors  of  the  principal,  and 
an  action  may  be  sustained  on  it  by  the  surety  against  the  prin- 
cipal, without  pfiying  any  of  the  debt* 

§  191.  When  special  contract  of  indemnity -will  not  authorize 
surety  to  recover  before  paying  the  debt.,  etc. — The  right  of  the 
surety  or  guarantor  to  recover  indemnity  from  the  principal  be- 
fore himself  paying  the  debt,  manifestly  depends  upon  the  terms 
or  legal  effect  of  the  express  contract  for  indemnity.  The  liabil- 
ity of  the  surety  for  the  debt  of  the  principal  is  a  sufficient  con- 
sideration to  support  such  a  contract  as  against  the  principal  or 
any  of  his  creditors,  and  the  terms  or  legal  effect  of  the  contract 
for  indemnity  will  prevail,  each  particular  case  being  governed 
by  its  own  circumstances.  After  a  note  signed  by  principal  and 
surety  was  due,  the  principal  gave  the  surety  a  contract  of  indem- 
nity, engaging  to  pay  the  note  to  the  creditor  "  so  as  wholly  to 
indemnify  and  save  harmless  the  ^-  (surety)  from  his  liability 
on  said  note  by  reason  of  signing  the  same  as  surety."  Held, 
this  was  but  a  common  contract  of  indemnity,  and  the  surety 
must  have  sustained  actual  damage  to  entitle  him  to  sue  on  it,  as 
it  could  not  be  presumed  that  the  contract  was  made  to  entitle 
the  surety  to  sue  on  it  at  once.  If  the  note  had  not  been  due 
when  the  contract  of  indemnity  was  made,  its  construction  w^ould. 
have  been  different.*     Where  a  surety  receives  from  the  principal 

>  Woodbury  v.  Bowman,  14  Me.  154.  *  Fletcher  v.  Edson,  8  Vt.  294. 

^  Powdl  V.  Smith,  8  Johns,  249.  ^  Adm'rs  of  Pond  v.  Warner,  2  Vt. 

^Adm'rs.  of  Pond  v.  Warner,  2  Vt.  532;  see,  also,  Jeffers  v.  Johnson,  1  Za- 

532.  briskie  (N.  J.)  73. 


272  KIGIITS   OF    SURETY    AGAINST    TEIXCIPAL. 

as  indemnity,  the  principal's  note  payable  at  a  particnlar  time,  it 
has  been  licld  that  he  might  sue  upon  it,  although  he  had  not 
been  compelled  to  pay  the  debt,  the  fair  presumjDtion  being  that 
by  making  the  note  payable  at  a  day  certain,  the  parties  intended 
to  provide  an  indemnity  against  suit  rather  than  against  ultiniate 
loss.'  Where  the  note  given  by  the  principal  to  the  surety  for 
his  indemnity  is  in  the  nature  of  a  collateral  security  only,  it  has 
been  held  that  the  surety  may,  on  such  note,  recover  whatever  sum 
he  has  actually  paid  out,  up  to  the  time  of  trial  and  no  more.^ 
If  an  indemnified  surety,  by  his  own  act,  causes  property  of  the 
principal  levied  on  for  the  payment  of  the  debt,  to  be  released, 
the  indemnitor  is  thereby  discharged.  Thus,  C  as  principal,  and 
A  as  surety,  executed  a  note,  and  B  at  the  same  time  gave  A  an 
ao^reement  to  save  him  harmless  from  all  loss  on  account  of  such 
suretyship.  The  creditor  obtained  a  judgment  against  A  and  C, 
and  levied  on  property  of  C  sufficient  to  satisfy  the  debt.  A  then 
replevied  (stayed)  the  judgment  for  two  years,  the  effect  of  which 
was  to  release  the  property  of  C  from  the  levy.  Before  the  two 
years  expired,  C  became  insolvent,  and  A  had  the  debt  to  pay. 
Held,  he  could  recover  nothing  from  B,  as  he  had  by  his  own  act 
prevented  the  payment  of  the  debt  by  C's  property.^  A  mortgage 
given  by  a  principal  to  a  surety  for  his  indemnity,  can  only  be 
held  by  him  for  the  very  purpose  for  which  it  was  given,  and 
where  it  is  given  to  indemnify  him  against  payment  of  half  a  debt, 
it  will  not  cover  a  payment  of  the  other  half.*  ISTor  will  such  a 
mortgage  cover  a  loan  made  by  the  surety  to  the  principal.^ 

§  192.  Surety  may,  before  paying  the  debt,  bring  suit  in  chan- 
ery  to  compel  principal  to  pay  it. — After  the  debt  for  which  a 
surety  or  guarantor  is  liable  has  become  due,  he  may,  Avithout  pay- 
ing the  debt  and  without  being  called  upon  by  the  creditor,  file 
a  bill  in  equity  to  compel  the  principal  to  pay  the  debt;  it  being 
unreasonable  that  a  surety  or  guarantor  should  always  have  a 
cloud  hanging  over  him,  even  though  not  molested  for  the  debt.® 

'  Russell «;.  La  Roque,  11  Ala.  352.  ^Pope  v.  Davidson,  5,  J.  J.  Marsh 

'Little  V.  Little,  13  Pick.  426;  Os-  (Ky.)  400. 

good  V.  Osgood,  39  New  Hamp.  209;  *  Newell  v.  Hurlburt,  2  Vt.  351.     On 

Child    V.    Powder    "Works,    44    New  same  point,  see  McDowell  v.  Crook,  10 

Hamp.  354;    contra,   Woodbridge  v.  La.  An.  31. 

Scott,  3  Brevard  (So.  Car.)  193;  see  on  *  Clark  v.  Oman,  15  Gray,  521. 

this  subject,   Williams    v.   Cheney,  3  «  West  v.  Chasten,  12  Florida,  315  ; 

Gray,  215.  Antrobus  r.  Davidson,  3  Meiivale,  569; 


SURETY   MAY    COMPEL    PRINCIPAL    TO    PAY   DEBT,  273 

Tliis  principle  is  universally  recognized,  and  has  been  applied  to  a 
great  variety  of  circumstances.  Thus,  a  surety  on  a  bond  to  secure 
a  money  debt  was  secured  by  another  bond  of  indemnity,  entered 
into  by  the  principal  debtor's  father,  who  had  died,  having  by 
will  devised  certain  property  specifically  upon  trust,  to  pay 
the  debt.  The  creditor  having  applied  to  the  surety,  the  surety 
had  recourse  to  the  executors,  who  said  they  had  no  funds  in 
hand,  and  that  they  were  unable  under  the  will  to  raise  the 
money  by  sale  of  any  portion  of  the  testator's  estate,  except  un- 
der a  decree  of  the  court.  Held,  that  the  surety,  although  he 
had  not  paid  anything,  was  entitled  to  maintain  a  bill  against  the 
executors  for  administration,  payment  of  the  debt,  and  indemnity, 
and  that  it  was  not  necessary  that  the  bill  should  be  filed  on  be- 
half of  all  the  creditors.  The  court  said  the  following:  was  the 
rule  :  "  A  court  of  equity  will  also  prevent  injury  in  some 
cases  by  interposing  before  any  actual  injury  has  been  suffered 
by  a  bill  which  has  been  sometimes  called  a  bill  quia  timet,  in 
analogy  to  proceedings  at  the  common  law,  where  in  some  cases 
a  writ  may  be  maintained  before  any  molestation,  distress  or 
impleading.  Thus  a  surety  may  file  a  bill  to  compel  the 
debtor  on  a  bond  in  which  he  has  joined  to  pay  the  debt  when 
due,  whether  the  surety  has  been  actually  sued  for  it  or  not;  and 
upon  a  covenant  to  save  harmless,  a  bill  may  be  filed  to  relieve 
the  covenantee  under  similar  circumstances." '  A  surety  whose 
principal  is  dead,  may,  before  paying  the  debt,  file  a  bill  against 
the  creditor  and  the  executor  of  the  debtor,  to  compel  the  executor 
to  pay  the  debt,  so  as  to  exonerate  the  surety  from  liability.  He 
may  enforce,  for  his  exoneration,  any  lien  of  the  creditor 
on  the  estate  of  the  principal,  and  may  bring  any  suit 
in  equity  which  the  creditor  could  bring  for  the  settle- 
ment of  accounts  and  administration  of  the  assets,  wheth- 
er legal  or  equitable,  but  the  creditor  must  be  a  party,  that 
he  may  receive  the  money  when  it  is  recovered,  ^     The  fact  that 

Irick  V.  Black,  2  C.  E.  Green  (N.  J.)  '  Woldridge  v.  Norris,  (Law  Rep.)  6 

189  ;  Bishop  v.  Day,  13  Vt.  81  ;  Thig-  Eq.  Cas.  410,  per  Giffard,  V.  C;    see, 

pen  V.  Price,  Phillips  Eq.  (ISTor.  Car.)  also.  Miller  v.  Speed,  9  Heisk.  (Tenn.) 

146;  Taylor  v.  Miller,  Phillips  Eq.  (Nor.  196. 

Car.)  365;  Saylors  v.  Saylors,  3  Heisk,  '^Stephenson  v,  Taverners,  9  Gratt. 

(Tenn.)  525;  Greene  v.  Stames,  1  Heisk.  (Va.)  398. 
(Tenn.)  582;  Howell  v.  Cobb,  2  Cold. 
(Tenn.)  104. 
18 


27-1  KIGIITS   OF   SUKETY   AGAINST    PRINCIPAL. 

an  administrator  had  become  insolvent  and  wasted  the  assets,  it 
has  been  lield  will  not,  before  the  time  for  settling  the  estate  has 
come,  entitle  the  surety  of  such  administrator  to  file  a  bill  to  pre- 
vent persons  who  owed  the  estate  from  paying  the  administrator, 
and  to  compel  the  administrator  to  give  the  surety  security. 
The  court  said  payment  by  the  debtors  ought  not  to  be  enjoined, 
as  they  might  become  insolvent,  and  the  surety  not  having  orig- 
inally demanded  indemnity,  could  not  demand  it  subsequently, 
but  after  the  time  for  settling  the  estate  arrived,  a  bill  might  be 
filed  by  the  surety  to  compel  the  distribution  of  the  assets.^  A 
mortgagee  who  is  also  surety  for  the  debt  secured  by  the  mort- 
gage, has  no  right  to  have  the  mortgaged  premises  sold  before 
the  debt  becomes  due,  even  though  the  same  are  in  a  state  of 
ruin  and  decay,  in  consequence  of  storms,  and  are  daily  getting 
w^orse.  The  court  said:  "  The  security  was  taken  with  knowledge 
of  the  situation  and  character  of  the  property,  and  of  the  risks 
to  which  it  was  exposed.  It  does  not  belong  to  the  court  to  give 
a  party  better  security  than  he  elected  to  take,  where  there  has 
been  no  fraud  or  mistake,  nor  any  abuse  or  waste  of  the  subject. 
I  am  not  informed  that  there  exists  any  precedent  for  a  bill  quia 
timet  adajDted  to  such  a  case.  All  the  cases  in  the  English  law, 
in  which  even  a  surety  may  file  a  bill  quia  timet  are  those  in 
which  the  debt  was  due  from  the  principal  debtor;  and  I  do  not 
know  of  any  principle  of  equity  that  will  justify  us  in  giving 
aid  to  the  surety  before  the  debt  is  due,  when  the  parties  have 
not  provided  in  their  contract  for  such  a  case."  ^ 

§  193.  Cases  in  -which  a  surety  may  have  relief  in  equity  be- 
fore paying  the  debt. — A  surety  or  guarantor  who  holds  a  mort- 
gage on  the  property  of  his  principal,  may,  after  the  maturity  of 
the  debt,  and  before  paying  it,  have  the  mortgage  foreclosed,  and 
the  proceeds  thereof  applied  to  the  payment  of  the  debt.'  It 
has  been  held  that  for  any  sum  which  a  surety  for  the  price 
of  land  purchased  by  another  has  paid,  or  is  liable  to  pay, 
on  that  account,  he  has  an  equity  to  be  reimbursed  or  exonerated 
by  a  sale  of  the  land,  and  to  that  end  he  has  a  right  to  file  his 
bill  to  prevent  a    conveyance  to  the  purchaser  by  the  vendor, 

'  Delaney  v.  Tipton,  3  Hayw.  (Tenn.)  Bank,  15  Ohio,  253;  DeCottes  v.  JefFers, 

14.  7  Florida,  284;  Markell  v.  Eichelber- 

' Campbell  r.  Macomb,  4  Johns.  Ch.  ger,  12  Md.  78;  Succession  of  Mont- 

R.  534,  per  Kent,  C.  gomery,  2  La.  An.  469. 

*  Kramer  v.  Farmers'  &  Mechanics' 


WHEN    SURETY    NOT    ENTITLED    TO    INDEMNITY.  275 

who  has  kept  the  title  as  a  security  for  the  purchase  money.* 
Where  the  surety  of  an  insolvent  principal  obtains  without  fraud 
the  legal  title  to  a  fund  belonging  to  his  principal,  equity  will  not 
compel  him  to  surrender  the  legal  title  to  his  principal,  so  that 
the  principal  may  dispose  of  the  fund  as  he  pleases;  but  if  the 
surety  has  not  paid  the  debt  will  authorize  and  compel  him  to 
apply  the  fund  to  its  satisfaction.^  Where  a  joint  judgment  was 
recovered  against  a  principal  and  surety,  and  the  principal  had 
property  subject  to  execution,  on  which  tiie  judgment  was  a  lien, 
and  sold  such  property  to  a  person  who  was  about  to  remove  the 
same  without  the  jurisdiction  of  the  court,  it  was  held  the  surety 
might  by  suit  in  chancery  prevent  the  removal  of  the  property.^ 
Where  a  party  was  surety  on  a  bond  given  by  a  deputy  sheriff  to 
the  sheriff,  and  had  taken  a  mortgage  on  personal  property  for 
his  indemnity,  and  the  sheriff  and  the  deputy  had  collected 
money  for  which  the  sheriff  was  sued,  and  the  deputy  had  de- 
parted the  jurisdiction,  and  the  mortgaged  property  had  come 
into  the  possession  of  a  third  party  upon  a  pretended  claim  of 
right,  which  party  was  charged  with  an  intention  of  removing  it 
beyond  the  jurisdiction  of  the  court,  it  was  held  that  the  court 
would  restrain  such  third  party  from  removing  the  property,  and 
require  bond  and  security  for  its  forthcoming  to  answer  the  claim 
of  the  surety." 

§  194.  Cases  in  which  a  surety  cannot  recover  indemnity 
from  the  principal. — The  surety  who  pays  a  debt  for  which  the 
principal  is  not  liable,  cannot  generally  recover  the  money  so 
paid  from  the  principal.  Thus,  where  the  surety  in  a  bond  against 
incumbrances  paid  the  costs  of  defending  two  suits  which  the 
bond  did  not  cover,  under  the  mistaken  belief  that  he  was  liable 
therefor,  it  was  held  he  could  not  recover  the  same  from  his  prin- 
cipal.^ So,  where  in  an  action  of  replevin,  a  bond  with  surety  is 
filed  by  the  plaintiff,  and  possession  of  the  property  is  obtained 
by  him,  and  afterwards  the  suit  is  dismissed  by  agreement  of  the 
parties,  the  plaintiff  agreeing  to  pay  the  defendant  a  certain  sum, 
but  no  judgment  is  rendered,  if  tlie  surety  afterwards,  without  the 
request  of  the  plaintiff,  pays  the  amount  agreed  to  be  paid  to  the 
defendant,  he  cannot  recover  the  same  from  his  principal,  as  the 

1  Smith  V.  Smith,  5  Ired.  Eq.  (Nor.  «  Anderson  v.  Walton,  35  Ga.  202. 

Car.)  34.  '♦Outlaw  v.  Reddick,  11  Ga.  669. 

*  McKnight  v.  Bradley,  10  Rich.  Eq.  ^  Bancroft  v.  Abbott,  3  Allen,  524. 
(So.  Car.)  557. 


276  RIGHTS    OF    SURETY    AGAIX-ST    PRINCIPAL, 

payment  is,  in  such  case,  a  voluntary  one  on  the  part  of  the 
surety.^  Where  a  county  court  borrowed  money  without  any 
legal  authority  so  to  do,  and  the  plaintiff  became  the  county's 
surety  on  the  bond  for  the  borrowed  money,  a  part  of  which  he 
had  since  been  compelled  to  pay,  it  was  held  that  such  plaintiff 
liad  no  right  to  call  upon  the  county  to  reimburse  him  for  the 
amount  already  paid,  or  to  exonerate  him  from  the  ^^ajanent  of 
the  balance  remaining  unpaid.  The  county  was  not  in  any  man- 
ner bound  to  the  creditor,  and  could  not  be  to  the  surety." 
Where  a  surety  paid  a  debt  after  personal  property  of  the  prin- 
cipal sufficient  to  satisfy  the  debt,  had  been  levied  upon,  it 
was  held,  he  could  not  recover  indemnity  from  the  princi- 
pal. The  levy  was  pi'ima  facie,  a  satisfaction  of  the  debt, 
and  the  surety  had  paid  a  debt  which  the  principal  had 
already  jjaid.'  A  surety  being  imprisoned  on  account  of  the 
debt  of  two  principals,  agreed  with  one  of  them  that  he  would 
pay  one-half  the  debt  if  such  principal  would  pay  the  other  half, 
and  this  was  done.  The  surety  then  sued  both  principals  for 
indemnity.  Held,  he  could  not  recover  from  the  one  with  whom 
he  had  made  the  agreement.  The  implied  presence  of  indemnity 
which  the  law  would  have  raised  was  superseded  by  the  express 
contract.*  But  it  has  been  held  that  an  agreement  by  a  surety 
that  he  will  surrender  a  note  of  the  princijDal,  if  the  principal  will 
procure  his  release  from  his  obligation  as  surety,  is  void  for  want 
of  consideration,  the  ground  of  the  decision  being  that  the  prin- 
cipal was  bound  to  indemnify  the  surety,  and,  in  procuring  his 
release,  he  had  only  done  what  he  was  under  a  leo^al  obligation  to 
do.^  TJie  master  of  a  vessel,  as  principal,  together  with  a  surety, 
entered  into  a  bond  that  the  vessel  should  not  take  any  slave  from 
one  of  the  Bahama  Islands.  A  slave  concealed  himself  in  the 
vessel  and  was  taken  to  ISTew  York,  where  the  surety  filed  a  bill 
against  the  principal  iov  ane  exeat  and  indemnity.  Held,  the  bill 
could  not  be  sustained,  as  it  was  not  certain  that  either  principal 
or  surety  was  liable,  and  the  Court  would  never  lend  its  aid  to 
enforce  a  forfeiture.'     Where  a  surety  buys  a  judgment  against 

'  Hollinsbee    v.    Ritchey,    49    Ind.  a  contrary  effect,  see  Clark   v.   Bell,  8 

261.  Humpli.  (Tenn.)  26. 

*  Davis  V.  Board  of  Comm'rs,  72  Nor.  *  Duncan  v.  Keiffer,  3  Bin.  (Pa.)  126. 

Car.  441;    Davis  v.  Commissioners  of  ^  Ritenour  v.  Mathews,  42  Ind.  7. 

Stokes  Co.  74  Nor  Car.  374.  « Gibbs  v.  Mennard,  6  Paige  Ch.  R. 

"Brown  V.  Kidd,  34  Miss.  291.    To  258. 


ASSIGNMENT    OF    CLAIM    AGAINST   PRINCIPAL.       SET-OFF.         277 

himself  and  his  principal  in  the  name  of  another  j)erson,  he  can- 
not recover  indemnity  from  the  principal  without  first  satisfying 
the  judgment.  He  may  either  proceed  upon  the  judgment  or 
satisfy  the  judgment  and  sue  the  principal  for  money  paid,  hut 
he  cannot  do  both.^ 

§  195.  Set-off — Surety  may  bid  at  execution  sale  of  principal's 
property — Surety  may  assign  his  claim  against  the  principal, 
etc. — In  a  suit  by  administrators  of  an  insolvent  estate  against 
one  who  was  surety  in  a  note  for  the  decedent,  such  surety  is  en- 
titled to  set  off  a  payment  by  him  of  such  note,  although  the 
payment  was  made  after  the  institution  of  the  suit  by  the  ad- 
ministrators against  him.  It  is  not  like  a  claim  brought  by  a 
party  after  suit  is  brought  against  him,  for  although  the  surety's 
right  to  indemnity  from  the  principal  M^as  not  perfect  till  he  paid 
the  debt,  yet  it  was  "  founded  upon  a  contract  which  existed  be- 
fore."^ If  the  surety  for  a  debt  pay  the  same  before  it  is  due,  tlie 
payment  will,  after  the  debt  has  become  due,  but  not  before,  be  a 
legal  set-oif  against  a  note  of  the  surety,  payable  to  the  princi- 
pal and  held  by  him.'  AVhere  a  surety  who  had  not  paid  the 
debt  filed  a  bill  against  his  principal,  alleging  that  the  principal 
was  about  to  remove  from  the  State  and  carry  with  him  all  his 
property,  and  prayed  for  an  injunction  to  prevent  the  removal, 
etc.,  it  was  held  that,  in  the  absence  of  any  statutory  provision 
on  the  subject,  he  was  not  entitled  to  relief.*  It  has  been  held 
that  a  surety,  before  paying  the  debt,  may  file  a  bill  to  set  aside 
fraudulent  convej'-ances  made  by  his  principal,''  and  the  contrary 
has  also  been  held."  A  surety  having  property  of  his  principal 
in  his  hands,  may  surrender  the  same  on  an  execution  against  his 
principal,  and  may  purchase  the  same  at  the  sale  under  the  ex- 
ecution,' and  he  may  so  purchase,  although  the  judgment  is  ren- 
dered against  him  and  his  principal  jointly.'  But  where  a  prin- 
cipal debtor,  with  money  sufiicient  to  pay  the  debt  in  his  pocket, 
sufiered  the  property  of  his  surety  to  be  sold  on  an  execution 

'  Hodges  V.  Armstrong,  3  Dev.  Law  ^  Taylor  v.  Executor  of  Heriot,  4  Des. 

(Nor.  Car.)  253.  Eq.  (So.  Car.)  227. 

2  Beaver  t>.  Beaver,  23  Pa.  St.  167,  « Williams    v.    Tipton,    5  Humph, 

per  Lewis,  J.     To  a  contrary  effect,  see  (Tenn.)  66. 

Walker  r.  McKay,  2  Met.  (Ky.)  294.  'Horsefield  v.  Cost,  Addison  (Pa.) 

^  Jackson    v.    Adamson,   7  Blackf.  152. 

(Ind.)  597.  « Carlos  v.  Ansley,  8  Ala.  900. 

■*Buford  V.  Francisco,  3  Dana  (Ky.) 
68. 


278  EIGHTS   OF    SURETY   AGAINST    PRINCIPAL. 

against  liina,  and  the  surety  and  himself  became  the  purchaser,  it 
was  held  to  be  doubtful  -whether  even  at  law  such  sale,  as  against 
the  surety,  was  not  a  mere  nullity,  and  that  in  a  court  of  equity 
such  a  purchaser  would  not  be  allowed  to  set  up  a  title  thus  ac- 
quired against  his  surety.^  A  bond  given  by  an  executor  (who 
Iiad  been  appointed  executor  by  the  will  but  had  not  given  bond)  for 
the  payment  to  his  surety  of  one-half  liis  commissions  from  time 
to  time,  as  they  may  be  allowed,  in  consideration  of  his  consent- 
ing to  become  such  surety,  is  a  valid  instrument.  It  is  not  an 
agreement  to  pay  money  in  order  to  obtain  an  aj)pointment,  but 
a  legitimate  means  of  carrying  out  the  wishes  of  the  testator.^ 
A  principal  executed  a  deed  of  trust  to  secure  certain  debts, 
among  them  one  on  which  there  was  a  surety.  The  surety  had  to 
pay  the  debt,  and  assigned  all  his  interest  in  the  deed  of  trust  to  a 
third  person.  Held,  such  third  person  might  enforce  and  have 
the  benefit  of  the  deed  of  trust.'  A  surety  who  bas  two  indem- 
nities may  usually  resort  to  either,  at  his  option.* 

§  196.  When  insolvent  principal  cannot  collect  debt  due 
him  by  surety — Verbal  guarantor  who  pays  debt  may  recover 
indemnity — Other  cases.— A  principal  who  is  insolvent  cannot 
collect  a  debt  which  the  surety  owes  him,  without  first  indemni- 
fying the  surety.  "  A  surety  has  in  respect  to  his  liability  the 
rights  of  a  creditor  as  against  bis  principal ;  and  upon  the  insol- 
vency of  the  principal  debtor  he  may  retain  any  funds  belonging 
to  such  debtor,  by  way  of  indemnity  against  his  liability;  other- 
wise a  surety  in  such  a  case  would  be  wholly  witliout  remedy 
when  the  ^^lainest  principles  of  justice  are  in  his  favor."  *  And 
the  assignee  of  a  judgment  obtained  by  the  principal  against  the 
surety  will  in  such  case  stand  in  no  better  position  than  the 
principal.*  An  executor  being  surety  for  his  testator,  paid  the 
debt  after  the  testator's  death.  Held,  he  had  a  right  to  retain 
this  debt  the  same  as  he  would  have  a  right  to  retain  any  other 
debt  of  equal  degree  due  by  the  testator  to  him.'  One  who  has 
verbally  guarantied  the  debt  of  another  at  his  request,  may  pay 

'  Perry  v.  Yarborougli,  3  Jones  Eq.  *  Abbey  v.   Van  Campen,  1  Freem. 

(Nor.  Car.)  66.  Ch.  R.  (Miss.)  273. 

^  Culbertson  v.    Stillinger,   Taney's  *  Williams  v.   Helme,    1    Dev.   Eq. 

Decisions  (Campbell)  75.  (Nor.  Car.)  151. 

^ York  v.  Landis,  65  Nor.  Car.  535.  'Boyd    v.  Brooks,   34  Beavan,   7; 

^  MuUer  v.  Downs,  94  United  States,  contra,  Anonymous,  Godbolt,  149. 
444. 


FAILURE    OF    CONSIDERATION.      FRAUDULENT    SCHEME.  279 

tlie  same  and  recover  indemnity  from  his  principal,  and  the  Stat- 
ute of  Frauds  will  be  no  defense  in  such  case,  although  it  would 
be  a  defense  to  an  action  on  the  guaranty.  The  contract  of  guar- 
anty was  not  void,  and  the  guarantor  had  a  right  to  perform  his 
parol  agreement.^  If  the  surety,  on  a  note  given  by  an  infant  for 
necessaries,  pay  it,  he  may  recover  indemnity  from  the  infant. 
"  If  the  infant  is  not  liable  on  the  note,  as  he  would  not  be  if  he 
elected  to  avoid  such  liabilitj',  an  assumpsit  upon  the  delivery  of 
the  ffoods  must  be  considered  as  subsisting;  against  him,  and  the 
note  of  the  surety  be  regarded  as  collateral  security  for  the  pay- 
ment.* As  long  as  a  judgment  against  the  principal  can  be  en- 
forced in  any  way,  either  by  scire  facias  or  action  of  debt,  the 
payment  of  such  judgment  by  a  surety  is  not  voluntary,  and  he 
may  recover  indemnity  from  the  principal.^ 

§  197.  Surety  on  note  who  pays  -without  notice  of  failure  of 
consideration,  may  recover  indemnity — When  surety,  who  has 
joined  in  fraudulent  scheme  with  principal,  may  recover  indem- 
nity— Other  cases. — A  payment  made  by  a  surety  in  compro- 
mise of  his  supposed  liability  upon  a  disputed  claim  against  him 
and  his  principal,  may  be  recovered  by  the  surety  from  the  prin- 
cipal if  it  turns  out  that  there  was  an  actual  liability,  and  the 
principal  has  or  is  entitled  to  the  benefit  of  the  payment  in  dis- 
charge of  so  much  of  the  original  claim  against  him.*  A  surety, 
who  without  notice  of  the  failure  of  consideration  of  a  note,  pays 
it  after  it  is  due,  may,  notwithstanding  such  failure  of  considera- 
tion, recover  indemnity  from  the  j)rincipal.*  After  judgment 
against  the  surety  in  a  replevin  bond,  he  paid  the  judgment  and 
sued  his  principal  for  indemnity.  The  jDrincipal  set  up  that  he 
had  no  title  to  the  property  replevied,  and  the  surety  knew  it  at 
the  time,  and  the  replevin  was  sued  out  by  collusion  between  him 
and  the  surety  to  get  the  property,  and  that  they  were  joint  tort 
feasors  and  neither  could  i-ecover  from  the  other.  Held,  no  de- 
fense. The  court  said:  "  If  the  giving  of  the  bond  was  a  fraud 
it  was  one  of  a  singular  character,  for  it  indemnified  the  intended 
victim.     This  suit  is  not  brought  upon  any  illegal  contract."^ 

'Beal  V.  Brown,  13  Allen,  114.  ^Gasquet  v.  Oakey,  19  La.  (Curry) 

^Conn  V.   Coburn,    7  New  Hamp.  76;  see  on  tkis  subject  Gates  v.  Ren- 

368.                              '  froe,  7  La.  An.  569. 

*  Randolph  v.  Randolph,  3  Randolph  ^  Smith  v.  Rines,  32  Me.  177,  per 
(Va.)  490.  Howard,  J. 

*  Bancroft  v.  Pearce,  27  Vt.  668.  ^ 


280  KIGIITS   OF   SURETY   AGAINST    I'EINCIPAL. 

Where  a  bond  with  A  as  surety  is  given  to  the  United  States, 
and  13  is  mentioned  in  the  bond  as  the  imj^orter,  and  A  ]3ays  the 
bond,  he  may  maintain  an  action  for  indemnity  against  B, 
although  in  fact  a  third  person  was  owner  of  the  goods.  The 
chaim  of  the  United  States  was  extinguished  by  the  bond,  and  the 
suret}'  has  a  right  to  sue  the  principal  in  such  bond.'  A  princi- 
pal placed  in  the  hands  of  his  surety  certain  securities  for  his  in- 
demnity. The  surety  paid  a  portion  of  the  debts  for  which  he 
was  liable,  and  collected  from  the  securities  in  his  hands  an  amount 
as  great  as  he  had  paid  out,  but  he  still  ]-emained  liable  for  other 
debts  of  the  principal.  Held,  he  must  a]:)ply  the  money  so  col- 
lected to  indemnif^'ing  himself  for  the  money  already  paid  by  him 
for  the  principal,  and  that  he  could  not  then  sue  the  principal  for 
indemnity.^ 

§  198.  Other  cases  as  to  rights  of  surety  against  principal. — - 
If  several  parties  sign  a  note  as  j^rincipals,  and  one  of  them  pays 
it,  he  may  sue  the  others  for  indemnity,  and  show  by  parol  that 
they  were  princij^tals,  and  he  a  surety.^  So,  where  two  of  three 
parties  who  signed  a  note,  added  to  their  names  the  word  "  sure- 
ty," and  one  of  them  paid  it,  he  may,  in  a  suit  for  indemnity 
against  the  other,  show  that  he  was  a  principal,  notwithstanding 
the  addition  to  his  name  of  the  word  "  surety."  *  The  same  thing 
was  held  where  a  principal,  during  his  minority,  contracted  a 
debt  for  which  a  surety  gave  his  note;  and  after  his  majority  the 
principal,  on  the  bottom  of  the  note,  acknowledged  himself  hold- 
en  as  co-surety.^  It  has  been  held  that  the  fact  that  after  a  note 
becomes  due  a  new  surety  signs  it,  will  not  prevent  the  original 
surety,  who  afterwards  pays  the  note,  from  recovering  indemnity 
from  the  principal.  The  payment  was  not  voluntary,  the  addition 
of  the  name  of  the  new  surety  not  annulling  the  original  liabili- 
ty on  the  note.'  A  husband  and  wife  owned  real  estate,  each  one 
half  in  fee,  and  made  a  mortgage  to  secure  the  debt  of  the  hus- 
band, w'hicli  was  not  properly  acknowledged,  and  did  not  convey 
the  wife's  interest.  Subsequently  they  made  another  mortgage 
to  secure  a  debt  of  the  husband  to  another  party,  which  was  duly 
acknowledged,  and  the  mortgaged  property  was  sold.     Held,  the 

'Sluby  V.  Champlain,  4  Johns.  461.  *Ap<?ar's  Admr.    v.   Hiler,   4  Zab. 

2  Whipple  V.  Biiggs,  30  Vt.  111.  (N.  J.j  812. 

^ Dickey  r.  Rogers,  19  Martin  (La.)  ^Thompson  v.   Linscott,  2   Greenl. 

7N.  S.  588.  (Me.)  186. 

«Catton  V.  Simpson,  8  Adol.  &  Ell.  136 


STATUTE    OF   LIMITATIONS.  281 

proceeds  should  be  applied,  first  to  pay  the  last  mortgage,  and  the 
overplus  should  be  applied  to  reimburse  the  wife  for  her  land  so 
sold ;  she  being  as  to  it  the  surety  of  her  husband,  and  her  equity 
as  such  surety  being  to  have  all  the  property  mortgag^ed  by  her 
husband  a]>plied  to  pay  the  debt  for  which  she  was  surety  before 
her  property  was  touched/  If  an  official  bond,  given  by  a  sher- 
iff and  his  sureties,  be  so  worded  as  not  to  be  joint  and  several, 
but  joint  only,  a  court  of  chancery  is  the  proper  tribunal  to  give 
the  sureties  relief  against  the  estate  of  the  sheriff  after  his  death, 
upon  their  being  compelled  to  pay  a  sum  of  money  on  account 
of  the  delinquency  of  such  sheriff  in  his  lifetime.'^  It  is  not  nec- 
essary for  the  principal  to  make  the  surety  a  party  to  a  suit  in 
chancery  which  he  may  bring  to  assert  any  equity  he  may  have 
against  the  demand  for  which  he  and  the  surety  are  bound  at 
law.^ 

§  199.  Statute  of  limitations,  as  between  surety  and  princi- 
pal.— Ordinarily,  the  statute  of  limitations  begins  to  run  in 
iavor  of  the  principal,  and  against  the  surety  who  pays  the  debt, 
from  the  time  of  such  payment,  and  not  from  the  time  when  the 
debt  became  due,  because  until  the  surety  has  been  compelled  to 
make  such  payment,  there  is  no  breach  of  the  implied  promise  of 
the  principal  to  indemnify  him.*  "When  a  surety  has  jDaid  money 
for  the  principal,  part  inside  and  part  outside  the  statute  of  lim- 
itations, on  account  of  the  same  debt,  all  payments  outside  the 
statute  are  barred  thereby.^  On  a  contract  to  indemnify  a  plain- 
tiff against  costs,  which  he  is  afterwards  called  on  to  pay,  the 
cause  of  action  arises  when  he  pays,  and  not  when  the  costs  are 
incurred,  or  the  attorney's  bill  delivered  to  such  plaintiff,  and  the 
statute  of  limitations,  therefore,  begins  to  run  from  the  time  of 

'  Johns.  V.  Reardon,  H  Md.  465.  Minn.  59;  Reid  v.  Flippen,  47  Ga.  273; 

^MountjoytJ.  Banks' Exrs.  6  Munf.  McLane  v.   Ragsdale,   31   Miss.  701; 

(Va.)  387.  Rucks  v.  Taylor,  49  Miss.  552;  Consi- 

^Bently  v.   Gregory,  7  T.  B.  Men.  dine  v.  Considine,  9   Irish  Law  Rep. 

(Ky.)  368.  400.    See,  also,  on  this  subject,  Keller 


^  Thayer  ».  Daniels,  110  Mass.  345 
Burton  v.  Rutherford,  Admr.  49  Mo 
255;  Scott  V.  Nichols,  27  Miss.  94 
Shepard  v.  Ogden,  2  Scam.  (111.)  257 
Wesley  Church  v.   Moore,  10  Pa.  St 


V.  Rhoads,  39  Pa.  St.  513. 

^  Davies  v.  Humphreys,  6  Mees.  & 
"Wels.  153;  the  contrary  has  been  held 
where  the  principal  was  not  notified  of 
the  payment  of  the  first  instahnents; 


273;  Bullock  V.  Campbell,  9  Gill  (Md.)      see    Williams'   Admr.    v.    Williams' 
182;    Walker   v.   Lathrop,    6    Iowa,      Admr.  5  Ohio,  444. 
(Clarke)  516;  Barnsback  v.  Reiner,  8 


2S2  EIGHTS   OF   SUKETY   AGAINST   TKIXCIPAL. 

such  paymeut."  A  and  B  -svere  sureties  of  C,  and  shortly  after 
the  debt  became  due,  A  paid  it.  Four  years  afterwards  B  jDaid 
A  one-half  tlie  sum  A  had  paid.  All  these  payments  were  made 
without  suit.  After  the  statute  of  limitations  had  run  from  the 
time  A  paid,  and  before  it  had  run  from  the  time  B  paid,  B  sued 
C  for  indemnity.  Held,  B's  claim  for  indemnity  was  not  barred 
by  the  statute.  The  cause  of  action  of  B  against  C  accrued  at 
the  time  of  the  payment  by  B  to  A.^  Where  a  party  upon  whom 
a  bill  of  exchange  was  drawn,  paid  it  for  accommodation  of  the 
drawer,  and  after  the  statute  of  limitations  would  have  barred 
an  open  account,  and  before  it  would  have  barred  a  suit  on  the 
bill  of  exchange,  lie  sued  the  drawer  for  indemnity,  it  was  held 
lie  could  recover,  because  he  was  entitled  to  subrogation  to  the 
rights  of  the  creditor  against  the  principal,  and  his  claim  was 
therefore  on  the  bill  of  exchange.  The  court  said:  "The  rights 
to  which  he  is  entitled  to  be  thus  subrogated,  are  those  which  the 
creditor  had  while  the  obligation  of  the  contract  subsisted,  not 
such  as  he  had  after  the  debt  has  been  paid.  *  The  doctrine  is 
that  the  payment  entitles  the  surety  to  be  subrogated  to  all  the 
rights  of  the  creditor.  It  was  his  right  to  sue  upon  the  contract. 
The  surety  upon  payment  is  subrogated  to  this  right,  and  may  in 
like  manner  maintain  his  action."^  "When  a  surety  pays  the 
creditor  the  amount  of  a  judgment  against  him  and  the  princi- 
pal, and  the  creditor  assigns  the  judgment  to  the  surety,  he  may 
avail  himself  of  the  judgment,  and  the  statute  of  limitations 
will  not  apply  to  the  judgment  as  it  would  to  the  implied  as- 
sumpsit that  would  accrue  to  him  upon  paying  off  the  judg- 
ment.* 

^Collinge  v.  Heywood,   9  Adol.  &  sguyettv.McKinney,  19Texas,  438, 

EU.  633.  per  Wheeler,  J. 

^  Odlin  V.  Greenleaf,  3  New  Hamp.  *  Morrison  v.   Page,  9  Dana  (Ky. 

270.  428, 


CHAPTER  X. 


OF  THE  EIGHTS  OF    THE   SUEETY  OE   GUAEANTOE    AGAINST 
THE    CEEDITOE   AND   THIED    PEESONS. 


Section 

Surety  not  discharged  by  lawful 
act  of  creditor.     Instances 

How  fraud  of  the  creditor  oper- 
ates on  liability  of  the  surety  . 

Surety  may  avail  himself  of  de- 
fense of  usury 

Whether  surety  may  avail  him- 
self of  set-off  in  favor  of  prin- 
cipal and  against  creditor 

Creditor  not  bound  to  exhaust 
securities  put  up  by  principal 
before  suing  surety.  When 
surety  without  paying  may 
enforce  securities  for  the  debt . 

Surety  may  compel  creditor  to 
proceed  against  principal 

Cases  holding  that  surety,  by  re- 
quest, and  without  suit,  may 
compel  creditor  to  proceed 
against  principal 

Requisites  of  the  request  to  sue  . 

Cases  holding  that  the  surety 
cannot  by  request  alone  accel- 
erate the  movements  of  the 
creditor  against  the  principal 

Surety  m^ay  make  the  same  de- 
fense at  law  as  in  equity. 
Whether  he  must  make  his  de- 
fense at  law  when  sued  at  law 

Whether  surety  having  failed  to 
make  defense  at  law  can  have 
relief  in  equity 


200 


201 


202 


203 


204 


205 


206 
207 


208 


209 


210 


Section. 

If  credi'^or  lead  surety  to  believe 
debt  is  paid,  and  surety  is  in- 
jured, he  is  discharged    .        .211 

When  surety  not  discharged,  al- 
though he  believe  debt  is  paid    212 

Rights  of  surety  against  third 
persons.     Indemnity  of  surety    213 

Surety  entitled  to  benefit  of  col- 
laterals. Creditor  not  bound 
to  notify  surety,  when      .        .     214 

Surety  not  discharged  because 
creditor  tells  him  his  signing  is 
a  mere  matter  of  form.  Other 
cases 215 

Surety  may  defend  suit  against 
principal.  How  Liability  of  sure- 
ty affected  by  fraud.  Other 
cases 216 

When  surety  cannot  recover  back 
money  paid  by  him  to  creditor. 
Party  who  is  indebted  may  be- 
come surety,  and  secure  surety- 
ship debt  to  exclusion  of  other 
creditors.    Other  cases    .        .    217 

Surety  may  enforce  trust  made 
for  his  benefit  without  his 
knowledge.     Other  cases        .    218 

When  surety  for  a  portion  of  a 
debt  entitled  to  share  in  divi- 
dend of  estate  of  insolvent 
principal.     Other  cases    .        •     219 


§  200.  Surety  not  discharged  by  lawful  act  of  creditor — In- 
stances.— Under  the  general  head  rights  of  the  surety  against 
the  creditor  might  properly  be  treated  most  of  the  grounds  for 
the  discharge  of  the  surety,  as  it  is  an  invasion  of  those  rights 

(283) 


284:  EIGHTS    OF    SURETY    AGAIA^ST    CKEDITOK. 

which  furnishes  the  grounds  for  such  discharge.  Separate  chap- 
ters have,  liowever,  been  devoted  to  an  examination  of  the  most 
important  of  tliose  grounds,  and  it  is  proposed  here  to  treat  only 
of  those  rights  of  the  surety  against  the  creditor  which  do  not 
properly  fall  under  other  subdivisions  of  this  v7ork.  "  A  creditor 
dischai-ges  a  surety  by  any  dealing  or  arrangement  with  the  prin- 
cipal debtor  without  the  surety's  assent,  which  at  all  varies  the 
situation,  rights  or  remedies  of  the  surety," '  But  "  the  act  of 
the  creditor  which  injures  the  surety,  or  increases  his  risk,  or  ex- 
poses him  to  greater  liability,  which  will  operate  as  a  discharge, 
must  be  some  act  which  the  law  does  not  authorize  or  sanction,  or 
the  omission  of  some  act  specially  enjoined  by  the  law."  '  Thus, 
the  fact  that  a  creditor,  after  principal  and  surety  are  bound  for  a 
certain  sum,  lends  the  principal  a  much  larger  sum,  and  takes  a 
bond  i'rom  the  principal  for  such  larger  sum,  does  not  discharge  the 
surety.'  So,  where  the  proprietor  of  a  newspaper  sold  it,  together 
with  its  press,  type,  good  will,  etc.,  and  the  purchaser  gave  notes 
with  surety  for  the  purchase  money,  and  the  vendor  afterwards 
started  in  the  same  town  another  newspaper,  which  took  so  much 
patronage  from  the  newspaper  he  had  sold  that  the  purchaser  was 
unable  to  pay  his  notes,  it  was  held  the  surety  was  not  discharged, 
as  the  starting  and  carrying  on  of  the  new  newspajDer,  there  be- 
ing no  agreement  to  the  contrary,  was  a  legal  and  permissible  act 
on  the  part  of  the  vendor.*  Where  a  creditor,  who  was  an  attor- 
ney, obtained,  as  attorney  for  other  creditors,  an  adjudication 
in  bankruptcy  against  the  principal  judgment  debtor,  and  thus 
prevented  a  lien  from  attaching  on  part  of  his  property,  it  was 
held  the  surety  was  not  discharged  thereby.  The  act  of  the  cred- 
itor was  lawful,  and  even  if  it  worked  an  injury  to  the  surety,  he 
could  not  complain.^  A  decedent  directed  by  his  will  that  all 
his  real  estate  should  be  sold,  and  the  proceeds  divided  among 
certain  of  his  children.  One  of  his  daughters  married  A,  and  he 
purchased  a  tract  of  the  decedent's  land  at  the  executor's  sale, 
and  gave  a  note,  with  B  as  surety,  for  the  purchase  money.  The 
surety  and    all  parties  then   expected    that  the  note  would  be 

*  Per  Lord  Truro,  C.  in  Owen  v.  Ho-  ^  Stewart  v.  Barrow,  55  Ga.  664,  per 

man,  3  Macn.  &  Gor.  378;  see,  also,  Warner,  C.  J. 

Watkins  v.  Wortbington,   2  Bland's  ^Y^yxQ  v.  Everett,  2  Russell,  381. 

Ch.  R.  (Md.)  509.     If  the  surety  con-  *  Rupp  v.  Over,  3  Brewster  (Pa.)  133. 

sent  to  tlie  injurious  act,  he  is  not  dis-  *  Thornton  v.  Thornton,  63  Nor.  Car. 

charged;  Burns  v.  Parks,  53  Ga.  61.  211. 


FEAUD    or    CEEDITOE.  285 

paid  by  the  distributive  share  of  A's  wife.  She  afterwards  com- 
menced a  suit  for  divorce  against  A,  in  which  she  was  successful, 
and  liad  most  of  her  distributive  share  decreed  to  her.  The  note 
was  not  paid,  and  the  surety  claimed  to  be  discharged,  because 
the  fund  he  had  relied  upon  for  payment  had  been  diverted  from 
its  purpose.  Held,  he  was  not  discharged,  as  the  diversion  of  the 
fund  was  not  the  act  of  the  creditor,  but  was  the  result  of  the 
wrong-doing  of  the  principal.' 

§  201.  How  fraud  of  the  creditor  operates  on  liability  of  the 
surety. — If  a  surety  is  induced  to  become  such  by  a  fraud  perpe- 
trated on  him  by  the  creditor,  as  by  false  representations  as  to 
material  facts,  that  will  be  a  good  defense;  but  "  the  i-epresenta- 
tion  to  avoid  the  contract  as  to  the  surety,  must  be  a  fraud  on 
him,  as  such,  and  in  that  character."  ^  If  the  creditor  intrusts 
the  note  of  the  principal  and  sureties  to  the  principal  for  some 
fraudulent  purpose,  and  consents  that  he  shall  make  the  sureties 
believe  the  debt  is  paid,  and  they  are  thus  induced  to  forego  any 
advantage  they  would  otherwise  have  had,  the  sureties  will  be  dis- 
charged. But  it  is  otherwise  if  the  note  was  intrusted  to  the 
principal  for  an  honest  purpose,  and  the  creditor  did  not  know 
of,  or  consent  to  the  false  representations.'  On  a  composition 
between  a  debtor  and  creditor,  they  induced  a  third  person  to 
become  surety  for  the  payment  of  one-half  the  debt,  by  represent- 
ing to  him  that  this  was  to  be  in  full  of  all  demands;  and  the 
debtor,  in  pursuance  of  a  previous  arrangement  of  which  the 
surety  was  unapprised,  gave  his  own  note  for  an  additional  sum: 
Held,  the  note  was  void  and  could  not  be  enforced  against  the 
maker,  who  was  the  principal  debtor,  on  the  ground  that  the 
taking  of  such  note  was  a  fraud  on  the  surety,  of  which  the  prin- 
cipal might  avail  himself.^  But  where  a  party  bought  a  team 
for  $700,  and  requested  a  surety  to  sign  a  note  for  $500  in 
payment  for  the  same,  and  the  seller,  in  answer  to  an  inquiry  by  the 
surety,  told  him  the  price  of  the  team  was  $500,  and  the  surety 
thereupon  signed  the  note,  and  the  purchaser,  without  the  knowl- 
edge of  the  surety,  gave  the  seller  a  note  for  $200  in  addition,  it 
was  held  that  this  last  note  was  binding  on  the  purchaser.  The 
court  said :  "  The  surety  has  no  interest  in  the  transaction  between 

1  Ross  V.  Clore,  3  Dana  (Ky.)  189.  ^  ^dmr.  of  Wilson  v.  Green,  25  Vt. 

2  Evans  v.  Keeland,  9  Ala.  42,  per      450. 

Ormond,  J.  *  Weed  v.  Bentley,  6  Hill  (N.  Y.)  56, 


286  EIGHTS   OF   SURETY    AGAINST    CKEDITOE. 

the  principal  and  creditor  beyond  his  own  indemnity.  He  is  not 
supposed  to  stipulate  or  assume  that  the  principal  shall  receive 
any  specific  benefit  from  the  transaction,  analogous  to  that  which 
parties  to  a  creditor's  composition  arrange  for  their  common  debtor. 
The  |)rincipal  stands  in  no  relation  of  tutelage  or  wardship  to  tlie 
surety,  that  laj-s  the  foundation  of  any  presumption  that  the  lat- 
ter in  assuming  suretyship,  is  arranging  an  advancement  or  the 
like  for  the  principal."  '  A  surety  for  the  price  of  property  bought 
by  the  principal,  cannot  usually  set  up  as  a  defense  that  a  fraud 
was  perpetrated  on  the  principal  in  making  the  sale,  unless  the 
principal  himself  repudiates  the  transaction.  This  is  on  the  prin- 
ciple that  the  contract  of  the  surety  is  accessory  to  the  principal 
debt,  and  if  the  debtor  himself  admits  the  debt  to  be  due,  the  surety 
cannot  be  permitted  to  deny  it,  for  that  would  be  to  permit  the 
principal  to  "  retain  the  fruits  of  the  contract,  whilst  the  surety 
would  avoid  the  performance  of  his  obligation  on  the  ground  of 
its  invalidity."  ^  The  president  and  chief  stockholder  of  a  na- 
tional bank  had  caused  it  to  be  guilty  of  several  acts  prohibited 
by  the  banking  law,  and  for  which  it  might  have  been  wound  up. 
While  the  bank  was  in  this  condition  he  sold  it-  and  was  in  such 
sale  guilty  of  other  violations  of  the  banking  law,  for  which  the 
bank  might  have  been  wound  up.  A  third  party,  without  the 
knowledge  of  these  facts,  became  the  surety  of  the  purchaser  on 
certain  notes  for  part  of  the  purchase  price,  and  gave  a  mortgage 
on  her  property  to  secure  the  purchase  money.  The  bank  soon 
after  failed,  and  the  surety  upon  learning  the  facts  filed  a  bill  to 
obtain  relief  from  the  notes  and  morto-ao-e.  Held,  the  relief  should 
be  granted.  It  was  urged  that  the  purchasers  did  not  seek  to  re- 
scind the  sale,  and  that  it  would  be  inequitable  to  allow  them  to  re- 
tain the  property  and  discharge  the  surety.  But  the  Court  said  that 
through  the  violation  of  law  by  the  bank  president,  who  was  the 
creditor,  the  bank  was  rendered  substantially  worthless,  and  pro- 
ceeded :  "Indeed,  it  may  be  decluced  from  settled  principles  in 
this  country  and  in  England,  in  accordance  with  what  is  dis- 
tinctly affirmed  in  the  civil  law,  that  the  agreement  of  the  surety 
is  not  binding  where  the  bargain  between  the  primary  parties 

'Mead  v.   Merrill,  30  New  Hamp.  ^jjvans  v.   Keeland,  9  Ala.    42,  per 

472,  per  "Woods,  C.  J. ;  same  thing  re-  Ormond,  J. ;  Brown  v.  Wright,  7  T.  B. 

affiiTned,   Mead   v.  Merrill,  33  New  Monroe  (Ky.)  396. 
Hamp.  437. 


USURY   A   DEFENSE    TO    SUEETT.  287 

out  of  wliicli  it  springs  is  contaminated  bj  positive  irregular- 
ities. ■'^'  Having  been  induced  to  become  surety  in  the  purchase 
of  a  bank,  when  Iier  principals  and  the  seller  without  her  know- 
ledge adopted  terms  and  conditions  which  were  illegal,  greatlv 
injurious  to  the  bank,  prejudicial  to  her  interests  and  serving  to 
impair  her  chance  of  protection  and  indemnification,  she  ought 
not  on  applying  for  relief  from  her  undertaking,  to  have  the  doors 
of  the  court  closed  against  her,  upon  the  objection  that  the  seller 
and  her  principals  have  allowed  the  matter  to  stand,  *  Here  we 
have  positive  illegality,  a  violation  of  public  policy,  and  a  fraud 
of  a  public  nature  which  was  adapted  to  operate,  and  did  operate, 
against  complainant  with  all  the  severity  and  mischief  of  a  direct 
fraud  upon  her."  ^ 

§  202.  Surety  may  avail  himself  of  defense  of  usury. — The 
surety  on  a  note  may  avail  himself  of  the  defense  of  usury  to 
the  same  extent  that  the  principal  can.  If  it  was  otherwise,  the 
principal  would  stand  in  a  better  position  than  his  surety,  and 
the  surety  could  either  not  recover  indemnity  from  the  principal 
for  the  usury  paid  by  him,  or  the  statute  against  usury  would  be 
evaded.''  Principal  and  surety  signed  a  replevin  (stay)  bond,  and 
the  princij)al  paid  large  amounts  of  usurious  interest  at  various 
times  for  extensions.  Held,  the  surety  might  by  a  separate  bill 
filed  for  that  purpose,  with  or  without  the  consent  of  the  princi- 
pal, be  allowed  as  credits  on  his  bond  the  usurious  interest  paid 
by  the  principal.^  Where  a  judgment  was  entered  on  a  bond 
tainted  with  usury,  of  wliich  usury  the  surety  had  no  knowledge 
when  he  became  bound,  and  the  creditor  filed  a  bill  to  subject 
equities  of  the  surety  to  tlie  payment  of  the  judgment,  it  was 
held  that  the  surety  could  not  by  cross-bill  allege  the  usury  and 
have  relief  against  it  without  a  tender  of  the  amount  due  in 
equity.*  It  has  been  held,  that  after  a  principal  has  been  dis- 
charged in  bankruptcy,  a  surety  when  sued  for  the  debt  cannot 
set  ofi"  usury  paid  by  the  principal  to  the  creditor  on  contracts 
other  than  the  one  sued  on,  and  this  upon  the  ground  that  by 
the  terms  of   the  bankrupt    act    all   debts    due    the    bankruj)t 

'  Denison  v.   Gibson,  24  Mich,  187,  'Curtcher  tJ.  Trabue,  5  Dana  (Ky.) 

per  Graves,  J.  80. 

^  Gray's   Exrs.   v.  Brown,   22  Ala.  ^  Bank  of   Wooster  v.   Stevens,    6 

262;  Stockton  v.  Coleman,  39  Ind.  106;  Ohio  St.  262.                                * 
Huntress  v.  Patten,  20  Me.  28;  AVei- 
mer  v.  Shelton,  7  Mo.  237. 


288  RIGHTS    OF    SURETY    AGAINST    CREDITOR, 

pass  to  his  assignee.^  Where  a  surety,  knowing  a  debtM-as  usuri- 
ous, paid  it,  and  the  principal  paid  him  bj  a  transfer  of  proper- 
ty, and  then  sued  the  creditor  to  recover  the  usury,  which  he 
might  have  done  if  he  had  himself  paid  the  usury  in  money,  it 
was  held  he  was  not  entitled  to  recover.'' 

§  203.  Whether  surety  may  avail  himself  of  set-off  in  favor 
of  principal  and  against  creditor. — As  to  whether  a  surety,  when 
sued  for  the  debt  of  his  principal,  can  at  law  avail  himself  of  a 
set-oif  existing  in  favor  of  the  principal  against  the  creditor,  the 
cases  do  not  agree,  but  the  weight  of  authority  is  that  lie  may  so 
avail  himself  of  such  set-oif.^  The  reasoning  upon  which  tliese 
decisions  proceed,  has  been  thus  expressed:  "Although  by  our 
statute  proper  matters  for  set-off  are  mutual  demands  only  * 
yet  it  is  not  considered  as  conflicting  with  this  rule  to  offset  a 
note  signed  by  a  principal  and  his  surety  against  a  note  running 
to  such  principal  alone;  the  debt  in  such  case  being  considered 
as  the  debt  of  the  principal."  *  In  an  action  at  law  against  a 
principal  and  surety  on  a  note,  it  has  been  held  competent  to  re- 
coup the  damages  of  the  principal  growing  out  of  the  contract 
to  the  same  extent  as  if  the  note  had  been  given  by  the  principal 
and  he  alone  were  sued.^  The  same  thing  has  been  held  to  be 
a  good  equitable  defense  to  an  action  at  law  under  a  statute  al- 
lowing equitable  defenses  to  be  made  at  law.^  In  debt  on  the 
bond  of  a  city  marshal,  against  the  principal  and  sureties,  it  was 
held  that  the  claim  of  the  marshal  alone  against  the  city  for  ser- 
vices was  admissible  as  a  set-off,  notwithstanding  the  fact  that 
the  bond  was  under  seal.''  Judgment  was  recovered  by  a  credi- 
tor against  a  principal  and  surety,  and  the  principal  recovered  a 
judgment  against  the  creditor,  who  was  insolvent.  Held,  the 
surety  might,  by  suit  in  chancery,  have  the  one  judgment  set 
off  against  the  other,  as  the  debts  were  in  reality  mutual,  and 
equity  would  look  beyond  the  form  of  the  debt  to  the  actual 
facts.*     A  held  the  note  of  B,  on  which  C  and  D  were  sureties. 

'  Woolfolk  V.  Plant,  46  Ga.  422.  ^  Per  Sargent,  J.  in  Andrews  f  .Var- 

nVhitehead  t'.  Pock,  1   Kelly  (Ga.)  rell,  46  NewHamp.  17. 

140.  s  Waterman  v.  Clark,  76  111.  428. 

^Andrews  t?.  Varrell,  46  New Hamp.  ^  Beehervaise  r.  Lewis,  Law  Rep.  7 

17;  HoUister  v.  Davis,  54  Pa.  St.  508;  Com.  PI.  372. 

Cole ».  Justice,  8  Ala.  793;  Bronaugh  'Concord    v.    Pillsbury,     33     New 

f.  Neal,  1  Robinson  (La.)  23;  Concord  Hamp.  310. 

r.  PiUsbmy,  33  New  Hamp.  310.  « Downer  r.  Dana,  17  Vt.  518. 


CEEDITOE   NOT    BOUND    TO    EXHAUST    SECUKITIES.  280 

A  sued  B  and  recovered  a  judgment,  but  for  a  less  amount  than 
lie  claimed,  in  consequence,  as  he  alleged,  of  B's  false  swearing. 
A  then  swore  out  a  warrant  for  the  arrest  of  B  on  a  chai-ge  of 
perjury,  and  B  fled  the  state.  In  consideration  tliat  A  would 
drop  the  prosecution,  B  gave  A  the  note  of  one  Mills  for  $500, 
which  was  all  the  property  B  had.  Held,  that  C  and  D  might, 
by  suit  in  chancery,  have  the  note  applied  to  the  payment  of  the 
debt  for  which  they  were  liable.^  On  the  other  hand,  it  has  been 
held  that  a  surety  cannot  at  law  avail  of  a  set-off  recoupment  or 
counter  claim  existing  in  favor  of  the  principal  against  the  cred- 
itor." This  is  put  upon  the  ground  that  the  princi^Dal  has  a  riglit 
to  bring  a  separate  action  for  his  claim  against  the  creditor,  and 
that  he  could  not  do  this  if  the  surety  was  allowed  to  set  it  up 
as  a  defense,  and  thus  he  might  lose  a  much  larger  sum  than  that 
for  which  the  surety  was  liable.  It  was,  however,  admitted  in 
those  cases,  that  the  surety  might  have  relief  in  equity  by  a  suit 
to  which  the  principal  was  a  party.  It  has  also  been  held  that 
the  creditor  cannot  at  law  set  off  a  debt  which  he  claims  to  be 
due  him  fi'om  a  guarantor,  against  a  debt  which  he  owes  such 
guarantor.^ 

§  204.  Creditor  not  bound  to  exhaust  securities  put  up  by- 
principal  before  suing  surety — when  surety  -without  paying  may 
enforce  securities  for  the  debt. — According  to  the  English  law, 
the  creditor  cannot  be  compelled,  before  proceeding  against  the 
surety,  to  exhaust  a  mortgage  or  other  securit}'  which  he  may 
hold  from  the  principal  for  the  payment  of  the  debt,  although  it 
is  otherwise  by  the  civil  law.''  The  remedy  of  the.  surety  is  to 
himself  pay  the  debt,  and  he  will  then  be  subrogated  to,  and  may 
enforce,  all  liens  held  by  the  creditor  for  the  payment  of  the  debt. 
A  creditor  in  New  Jersey,  where  the  parties  resided,  took  from 
B,  the  holder  of  a  promissory  note  indorsed  by  the  plaintiff,  on  a 
loan  of  money  alleged  to  be  usurious,  a  bond  and  mortgage, 
which  was,  if  valid,  an  ample  security  for  the  debt,  and  instead 

'  Breese  r.  Schuler,  48  111.  329.  ''Watson  v.  Sutherland,   1   Cooper, 

-Gillespie  I'.  Torrance,  25  NewYork,  Ch.  E.  (Tenn.)  208;  Hayes  i-.  Ward, 

306;  Lafarge  v.  Halsey,  1  Bosw.  (N.  4  Johns.  Ch.  R.  123;  Buck  r.  Sanders, 

Y.)  171 ;  Lasher  t>. Williamson,  55  Ne-w  1  Dana  (Ky. )  187.  See  on  same  subject, 

York,  619.  On  same  subject,  see  Poor-  Gary  r.  Cannon,   3  Ired.  Eq.    (Nor. 

man  v.  Goswiler,  2  Watts  (Pa.)  69.  Car.)  64.     See,  also,  Irick  v.  Black,  2 

"Morleyr.  Inglis,   4  Bing.    (N.  C.)  C.  E.  Green  (N.  J.)  189. 
58;  Id.  5  Scott,  314. 
19 


290  RIGHTS    OF    SURETY   AGAINST    CREDITOR. 

of  resortini^  to  the  bond  and  morti^age,  or  to  the  principal,  sued 
the  plaintiff  in  JSTew  York  on  his  indorsement.  The  plaintiff 
filed  a  bill  to  enjoin  the  suit  at  law  till  the  bond  and  mortgage 
were  exhausted  in  New  Jersey,  and  it  was  held  he  was  entitled  to 
relief.  The  court  held  the  law  to  be  as  above  stated,  and  granted 
the  relief  solely  on  the  ground  that  there  was  reasonable  ground 
to  believe  that  the  bond  and  mortgage  had  been  rendered  frail 
and  insecure  by  the  illegal  act  of  the  holder  of  the  note,  and  the 
court  would  not  permit  the  surety  to  be  forced  to  pay  the  money 
and  then  litigate  this  doubtful  question  with  the  maker  of  the 
bond  and  mortgage,  as  it  was  more  equitable  that  the  creditor 
should  first  litigate  it.*  Where  principal  and  surety  have  both 
mortgaged  property  for  the  debt  of  the  principal,  the  surety  is 
entitled  to  have  the  property  of  the  principal  sold  first  to  satisfy 
the  debt."  When  the  principal  is  insolvent,  the  surety  has,  under 
certain  circumstances,  a  right,  before  paying  the  debt,  to  file  a  bill 
to  enforce  a  lien  for  its  payment.  This  was  held  where  a  slave 
was  sold  under  a  decree  of  court  and  a  lien  retained  for  the  pur- 
chase money,  for  which  a  surety  also  became  bound,  and  the  slave 
was  levied  on  by  other  creditors:'  Where  land  belonging  to  an 
estate  was  sold  and  a  lien  retained  on  it  for  the  purchase  money:* 
And  where  certain  persons  had  in  their  hands  funds  belonging  to 
a  clerk  of  a  court  in  his  representative  capacity.^  Where  a  judg- 
ment had  been  rendered  against  principal  and  surety,  and  the 
principal  was  insolvent,  it  was  held  that  a  court  of  chancery 
would  entertain  jurisdiction  of  a  suit  brought  by  the  surety  for 
the  purpose  of  reaching  credits  of  the  principal  in  the  hands  of 
third  parties,  and  appropriating  them  in  payment  of  the  judg- 
ment, although  the  surety  had  not  paid  the  debt.^ 

§  205.  Surety  may  compel  creditor  to  proceed  against  princi- 
pal.— It  is  settled  by  a  long  continued  and  unvarying  current  of 
authorities,  that  the  surety  may,  by  a  suit  in  chancery,  after  the 
debt  becomes  due,  and  before  he  pays  it,  compel  the  creditor  to 

'  Hayes  v.  Ward,   4  Johns.   Ch.  R.  (Nor.  Car.)  395.    To  same  effect,  see 

123.  Green  v.  Crockett,  2  Dev.  &  Bat.  Eq. 

°  Neimcewicz  v.  Galm,  3  Paige  Ch.  390;  Arnold  v.  Hicks,  3  Ired.  Eq.  (-Nor. 

R.  614:  James  v.   Jacques,  26  Texas,  Car.)  17;  Egerton  v.  Alley,  6  Ired.  Eq. 

320.  (Nor.  Car.)  188. 

^ Henry  r.  Compton,  2  Head (Tenn.)  ^Bunting  v.   Ricks,  2  Dev.  &  Bat. 

549.  Eq.  (Nor.  Car.)  130. 

*  Polk  V.  Gallant,  2  Dev.  &  Bat.  Eq.  «  McConnell  v.  Scott,  15  Ohio,  401. 


SURETY  MAY  ACCELERATE  MOVEMENTS  OF  CREDITOR.  291 

])roceed  to  collect  the  debt  from  the  principal,  provided  he  indem- 
nify the  creditor  against  loss  from  a  fruitless  suit  against  the 
principal.^  As  the  mere  passive  delay  of  the  creditor  in  pro- 
ceeding against  the  principal,  however  long  continued  and  how- 
ever injurious  to  the  surety,  will  not  ordinarily  discharge  him, 
this  right  to  accelerate  the  movements  of  the  creditor  is  of  great 
importance.  Even  if  the  surety  should  suffer  no  injury  by  the 
delay,  it  is  unreasonable  that  he  should  always  have  such  a  cloud 
as  the  debt  of  the  principal  hanging  over  him.  It  is  likewise 
settled,  that  the  surety  may  npon  the  terms  of  bringing  the 
amount  due  into  court,  compel  the  creditor  to  prove  the  debt  in 
bankruptcy  against  the  estate  of  the  principal.^ 

§  206.  Cases  holding  that  surety  by  request  and  v^ith out  suit 
may  compel  creditor  to  proceed  against  principal.- — -As  to  wheth- 
er the  surety  may  without  suit  accelerate  the  movements  of  the 
creditor  against  the  principal  there  is  great  conflict  of  authority. 
There  is  a  numerous  and  well  considered  class  of  authorities 
which  hold  that  if,  after  the  debt  is  due,  tlie  surety,  verbally  or 
in  writing,  request  the  creditor  to  sue  the  principal,  who  is  then 
solvent,  and  the  creditor  fail  to  do  so,  and  the  principal  after- 
wards becomes  insolvent,  the  surety  is  thereby  discharged.  The 
reasoning  upon  wliich  these  decisions  are  founded  is  that  equity 
will  compel  the  creditor  to  sue  the  principal  and  make  the  money 
from  him,  because  he  is  primaril}''  liable  for  it,  and  it  is  the  duty 
of  the  creditor  to  get  payment  from  him  if  possible.  If  it  is  his 
duty  to  do  this,  there  is  no  reason  why  he  should  not  be  com- 
pelled to  do  it  upon  the  request  of  the  surety  in  pais,  as  well  as 
by  filing  a  bill  in  chancery  against  him.  Where  the  creditor 
does  any  act  injurious  to  the  surety,  or  omits  to  do  an  act  when 
required  which  equity  and  his  duty  to  the  surety  enjoin  it  npon 
him  to  do,  and  the  omission  is  injurious  to  the  surety,  in  either 
case  the  surety  will  be  discharged.  To  delay  under  such  circum- 
stances is  against  conscience,  and  in  its  effect  is. a  fraud  upon  the 

'  Ranelangli  «.  Hays,  1  Vernon,  189;  131;    Rees  v.  Berrington,  2  Ves.   Jr. 

Hays  V.  Ward,  4  Johns.  Cli.  R.   123;  540;    Huey  v.  Pinney,  5   Minn.   310; 

Antrolus  v.  Davidson,  3  Merivale,  569-  Kent  v.  Matthews,  12  Leigh  (Va.)573; 

79;  King  v.  Baldwin,  2  Johns  Ch.  R.  Rice  v.  Downing,  12  B.  Mon.   (Ky.) 

554  ;     Lee    v.    Rook,    Moseley,    318  ;  44;  In  re  Babcock,  3  Story,  393. 

Whitrldge  v.  Durkee,  2   Md.  Ch.  R.  nVright  ??.  Simpson,  6  Vesey,  714; 

442;  Nisbet  v.   Smith,    2  Brown  Ch.  Ex  parte  Rushforth,    10  Vesey,    409; 

Ca.  579;  Hogaboom  v.   Herrick,  4  Vt.  In  re  Babcock,  3  Story,  393. 


293 


EIGHTS    OF    SURETY    AGAINST   CKEDITOK. 


surety.^  The  fact  that  there  was  a  statute  providing  for  the  discharge 
of  the  surety,  if  the  creditor  failed  to  sue,  upon  being  required  in 
writing  bj  the  surety  to  do  so,  has  been  hekl  to  make  no  differ- 
ence, the  statute  being  held  to  be  merely  cumulative,  and  not  to 
irajjair  the  right  of  a  surety  to  be  discharged  upon  a  verbal  re- 
quest.^ In  order  that  the  request  may  have  this  effect,  the  prin- 
cipal must,  at  the  time  thereof,  be  solvent  and  able  to  pay  all  his 
debts,  according  to  the  ordinary  usage  of  trade.^  The  request 
need  not  be  accompanied  by  an  offer  to  pay  the  expenses  of  the 
suit,  nnless  the  creditor  expressly  puts  his  refusal  to  sue  upon 
this  ground,"  If  the  creditor  have  a  mortgage  on  property  of  the 
principal  for  the  security  of  the  debt,  which  is  ample  for  that 
purpose  when  the  debt  becomes  due,  and  refuse  after  request  by 
the  surety  to  foreclose  the  mortgage  till  the  property  greatly  de- 
preciates in  value,  it  has  been  held  that  the  surety  is  thereby  dis- 
charged."    It  has  also  been  held  that  if  the  creditor,  after  request 


'Pain  V.  Packard,  13  Johns.  174; 
King  V.  Baldwin,  17  Johns.  384,  re- 
versing the  decision  of  Chancellor 
Kent,  in  King  v.  Baldwin,  2  Johns.  Ch. 
R.  554,  by  the  casting  vote  of  Lieut. 
Gov.  Taylor,  a  layman.  Ilie  two  first 
named  cases  are  the  leading  authori- 
ties on  the  ■vdew  of  the  subject  which 
they  hold.  They  have  been  followed, 
or  decisons  to  the  same  effect,  rendered 
in  Manchester  Iron  Manf.  Co.  v.  Sweet- 
ing, 10  Wend.  163;  Hempstead  v. 
Watkins,  6  Ark.  (1  Eng.)  ;il7;  Mar- 
tin V.  Shekan,  2  Colorado,  614;  Han- 
cock V.  Bryant,  2  Yerg.  (Tenn.)  476; 
Cope  V.  Smith  Exr.  8  Serg.  &  Rawle 
(Pa.)  110;  Hopkins  v.  Spurlock,  2 
Heisk.  (Tenn.)  152;  Thompson  ?'.  "Wat- 
son, 10  Yerg.  (Tenn.)  362;  Colgrove?;. 
Tallman,  67  N.  Y.  95;  Bruce  v.  Ed- 
wards, 1  Stew.  (Ala.)  11.  See  Trimble 
V.  Thome,  16  Johns.  152,  as  to  applica- 
tion of  this  principle  to  the  indorser  of 
a  promissory  note. 

'Thompson  r.  Watson,  10  Yerg. 
(Tenn.)  362;  Strader  v.  Houghton,  9 
Port.  (Ala.)  334;  Herbert  v.  Hobbs,  3 
Stew.  (Ala.)  9;  Goodmans.  Griffin,  3 
Stew.  (Ala.)  160. 

^Herrick  v.  Borst,  4  Hill  (N.Y.)650. 


To  similar  effect,  see  Huffman  v.  Hul- 
bert,  13  Wend.  377;  Merritt  v.  Lin- 
coln, 21  Barb.  249;  Field  v.  Cutler,  4 
Lans.  (N.  Y.)  195. 

"Wetzel  V.  Sponsler,  18  Pa.  St. 460. 

^  Remsen  v.  Beekman,  25  New  York, 
552;  where  the  doctrine  of  King  v. 
Baldwin,  although  previously  ques- 
tioned by  judges  in  the  same  State,  was 
approved  on  principle,  and  followed  as 
authority.  If  the  principle  of  King  v. 
Baldwin  is  correct,  it  would  seem  clear 
that  the  above  decision  is  also  correct. 
The  precise  opposite  has,  however, 
been  held,  in  Branch  Bank  at  Mont- 
gomery V.  Perdue,  3  Ala.  409,  and  in 
Haden  v.  Brown,  18  Ala.  641,  by  a 
court  which  held  the  doctrine  of  King 
V.  Baldwin.  The  same  court  held  that 
after  judgment  against  principal  and 
sureties,  the  sureties  were  not  dis- 
charged by  the  failure  of  the  creditor, 
upon  request,  to  levy  on  the  property 
of  the  principal,  and  the  subsequent 
insolvency  of  the  pi'incipal :  Buckalew 
V.  Smith.  44  Ala.  638;  and  also  that  a 
lessor  was  not  bound  to  distrain  prop- 
erty of  the  lessee  upon  the  request  of 
the  surety;  the  distinction  seeming  to 
be  made  between  forcing  the  creditor 


KEQUISITES  OF  EEQUEST  TO  SUE.  293 

bj  the  suret}^,  fail  to  present  liis  claim  against  tlie  estate  of  an 
insolvent  principal,  and  the  debt  is  thereby  lost,  the  surety  is  re- 
leased jpTo  taiito}  A  guaranty  given  by  the  defendant  was  to  be 
void  if  the  plaintiff  should  omit  to  avail  himself  to  the  utmost 
of  any  security  he  held  of  K.  He  held  a  bill  drawn  by  E.,  and 
accepted  by  au  insolvent,  still  in  prison.  Held,  he  was  not  bound 
before  suing  on  the  guaranty  to  prosecute  the  insolvent.''  A  was 
indebted  to  B  for  one  year's  rent  of  certain  premises,  for  which 
B  had  lost  his  landlord's  lien,  by  lapse  of  time,  A  was  also  in- 
debted to  C  for  rent  for  the  cui-rent  year,  for  which  C  had  a  lien 
if  he  chose  to  enforce  it,  and  for  which  last  rent  D  was  surety. 
The  property  of  A  was  levied  on  by  execution  at  the  suit  of  third 
parties,  and  D  notified  C  to  file  his  claim  for  rent  with  the  slier- 
iff",  by  which  the  lien  would  have  been  preserved,  and  the  debt 
made.  C  refused  to  do  this,  and  the  debt  was  lost.  Held,  the 
surety  D  was  discharged.^ 

§  207.  Requisites  of  the  request  to  sue. — The  notice  to  the 
creditor  to  sue,  which  will  discharge  the  surety  if  not  complied 
with,  should  be  so  clear  and  distinct  that  the  meaning  of  the 
surety  can  be  at  once  apprehended  without  explanation  or  argu- 
ment.* A  request  to  "  push  (the  surety)  and  keep  pushing  him," 
when  it  is  understood  by  both  parties  to  be  a  request  to  collect 
the  debt  by  legal  means,  is  sufiicient.  A  ]-cquest  to  collect  the 
money  by  dunning  or  in  any  other  way  than  by  legal  proceedings, 
is  not  sufiicient.*    A  notice,  by  the  surety  in  a  note  to  the  holder 

to  proceed  generally,  and  forcing  him  Hocli,  25  Pa.  St.  525;  Baldwin  v.  Gor- 
to  proceed  in  a  particular  way  against  don,  12  Martin  (La.)  0.  S.  378. 
particular  property:  Brooks  r.  Carter,  '  McCollum  v.  Hinkley,  9  Vt.  143. 
36  Ala.  082.  To  the  same  eifoct  as  the  The  general  doctrine  of  King  v.  Bald- 
last  case,  see  Ruggles  v.  Holden,  3  win  is  repudiated  by  the  same  court: 
Wend.  216.  It  has  also  been  held  that  Hogaboom  v.  Herrick,  4Vt.  131;  Hick- 
a  creditor  is  not  bound,  upon  request,  ok  v.  Farmers'  &  Mechanics'  Bank,  35 
to  an-est  a  principal  who  is  insolvent,  Vt.  476. 

but  had  friends  who  would  probably  ^  Musket  v.  Rogers,  5  Bing.  (N.  C.) 

have  paid  the  debt  if  he  had  been  ar-  728;  Id.  8  Scott,  51. 

rested  :  Warner  v.  Beardsley,  8  Wend.  ^  Lichtenthaler    v.    Thompson,     13 

194.     It  has  been  held    by  another  Serg.  &.  Rawle  (Pa.)  157. 

court,  that  the  creditor  was  not  bound  *  Wolleshlare  v.  Searles,  45  Pa.  Sfc. 

at  the  request  of  the  surety  to  levy  45;  Shimer  v.  Jones,  47  Pa.  St.  268; 

on  property  of  the  principal:  Newe  1  Conrad  v.  Foy,  68  Pa.  St.  381. 

V.  Hamer,  4  Howard  (Miss.)  684.     On  *  Singer  v.  Troutman,  49  Barb.  (N. 

this  subject  see,  also,  Bank  v.  Kling-  Y.)  182. 
ensaiith,  7  Watts  (Pa.)  523;  Weiler  v. 


294:  KIGUTS   OF    SUKETY   AGAINST    CREDITOE. 

"to  collect  it,  as  he  would  not  stand  bail  any  longer,"  is 
sufficient.^  It  has  been  held  that  the  request  to  sue  must 
be  accompanied  by  an  explicit  declaration  that  unless  suit  is 
brought  the  surety  will  no  longer  remain  liable.  Therefore, 
where  a  surety  wrote  to  a  creditor,  as  follows:  "  I  therefore,  notify 
you  that  I  will  be  no  longer  considered  bail.  Please  take  another 
bond  from  him  or  payment,"  it  was  held  the  request  was  not 
sufficient.^  The  request  to  sue  a  note  when  due,  avails  nothing 
if  made  before  the  note  is  due.  The  request  must  be  made  at 
the  time  of,  or  after,  the  maturity  of  the  obligation.^  The  surety 
may  make  the  request  by  agent,  and  if  he  has  a  general  agent 
who  transacts  all  his  business,  it  is  the  duty  of  such  agent  to 
make  such  request,  without  any  special  directions.  Where  the 
creditor  is  not  in  the  neighborhood,  and  has  left  the  note  in  the 
hands  of  an  agent  for  collection,  the  request  may  be  made  of  such 
agent.^  The  request  may  be  made  of  the  counsel  of  an  absent  or 
non-resident  plaintiff  in  a  judgment.^  "Where  a  married  woman 
is  the  owner  of  a  note,  a  request  made  of  her  husband  to  put  the 
note  in  suit  will  not  avail  the  surety.  The  husband  is  not  ijpso 
facto  the  agent  of  the  wife  in  that  regard.^  It  has  been  held 
that  the  request  to  sue  would  not  avail  the  surety  if  the  principal 
lived  in  another  county.''  But  it  has  also  been  held  that  the 
surety  might  avail  himself  of  such  request  when  the  principal 
lived  in  another  State,  but  had  propert}''  in  the  State  in  which  the 
creditor  resided,  which  might  have  been  subjected  to  the  payment 
of  the  debt.^  Wliere  the  creditor  has  failed  to  sue  upon  request,  it 
has  been  held  that  the  burden  of  proof  is  on  him  to  show,  in  a 
suit  against  the  surety,  that  the  money  could  not  have  been  col- 
lected if  suit  had  been  brought  against  the  principal  when  the 
request  was  made.' 

§  208.      Cases  holding  that  the  surety  cannot,  by  request  alone, 
accelerate  the  movements  of  the  creditor  against  the  principal. — 

^  Stickler  v.  Burkliolder,  47  Pa.  St.  » Thomas  v.  Maiui,  28  Pa.  St.  520. 

476.  6  Shinier  v.  Jones,  47  Pa.  St.  268. 

^  Greenawalt  v.  Kreider,  3  Pa.  St.  '  Alcorn  v.  The  Commonwealth,  66 

264.    To  similar  effect,  see  Erie  Bank  Pa.  St.  172. 

V.  Gibson,  1  Watts  (Pa.)  143.  « Hancock  v.  Bi7ant,  2  Yerg.  (Tenn.) 

3  Hellen  v.  Crawford,  44  Pa.  St.  105.  476. 

*  Wetzel  V.  Sponslers'  Exrs.  18  Pa.  » Stickler  v.  Burkholder,  47  Pa.  St. 

St.  460.      See,   also,   on    this    point,  476. 
Geddis  V.   Hawk,   10  Serg-.  k  Rawle 
(Pa.)  33. 


SURETY    CANNOT    BY    REQUEST    FORCE    CREDITOR   TO    SUE.       205 

Tlie  great  majority  of  cases  on  tlie  subject  liold,  in  the  absence  of 
any  statutory  provision,  that  if  after  the  debt  is  due  the  surety 
request  the  creditor  to  sue  the  principal,  who  is  then  solvent,  and 
the  creditor  fails  to  do  so,  and  the  principal  afterwards  becomes 
insolvent,  the  surety  is  not  thereby  discharged.  The  ground  upon 
wljich  these  decisions  rest  is,  that  the  principal  and  surety  are 
both  equally  bound  to  the  creditor,  who  may  have  taken  a  surety 
in  order  that  he  might  not  have  to  sue  the  principal.  If  the 
surety  desires  a  suit  brought  against  the  principal,  he  may  him- 
self pay  the  debt,  and  immediately  sue  the  principal.  The  con- 
trary doctrine  is  an  innovation,  and  was  unknown  to  the  common 
law.^  The  surety  on  the  bond  of  a  note  clerk  of  a  bank  was  in- 
formed by  the  bank  of  an  embezzlement  committed  by  the  clerk, 
and  before  paying  any  portion  of  the  amount  embezzled,  requested 
the  bank  to  cause  the  arrest  of  the  clerk,  which  it  refused  to  do: 
Held,  the  surety  was  not,  in  the  absence  of  any  indication  of  a 
fi-audulent  connivance  at  the  escape  of  the  clerk,  discharged 
thereby.''  Where  the  liolder  of  two  notes  made  by  the  same  party 
commenced  an  action  against  him,  declaring  on  the  common 
counts  for  a  greater  sum  than  the  aggregate  of  both  notes,  and 
attached  property  sufficient  to  satisfy  both,  but  did  not  intend  to 
include  in  the  action  one  of  the  notes,  which  was  signed  by  a 
surety,  and  there  were  subsequent  attachments  of  the  same  prop- 
erty by  other  creditors,  it  was  held  tliat  the  plaintiff  was  not  bound 
to  comply  with  the  request  of  the  surety,  to  put  into  the  action  the 
note  signed  by  him,  even  though  he  offered  to  indemnify  the 

'Jenkins  v.   Clarkson,  7  Ohio,    72;  476;  Hogabooni  v.  Herrick,  4  Vt.  131; 

Can-  V.  Howard,  8  Blackf.  (Ind.)  190;  Caston  v.  Duulap,  Richardson  Eq.Cas. 

Halstead  v.  Brown,  17  Ind.  202;  Exrs.  (So.  Car.)  77;  Croughton  v.  Duval,  3 

of  Dennis  v.  Rider,  2   McLean,  451;  Call   (Va.)  GO;  Boutte  v.  Martin.    16 

Davis  w.  Huggins,  3  NewHamp.  231;  La.  (Curry)  133;  Taylor  v.   Beck,    13 

Pickett  V.   Land,   2  Bailey  Law  (So.  111.  376.     On  same  subject,   see   Huey 

Car.)  608;  Nichols  v.  McDowell,  14  B.  v.   Pinney,   5    Minn.   310;  Bizzell    v. 

Mon.  (Ky.)  5;  Frye  v.  Barker,  4  Pick.  Smith,   2   Dev.   Eq.   (Nor.   Car.)  27; 

382;  Stout  V.   Ashton,   5  T.  B.  Mon.  Thompson  r.  Bowne,  39  New  Jer.  Law 

(Ky.)251;  Gage  v.  Mechanies'   Natl.  (10  Vroom)  2;  Hogshead  v.  Williams, 

Bk.    of  Chicago,  79   111.  62;  Dillon  v.  55  Ind.  145;  Harris  v.  Newell,  42  Wis. 

Holmes,  5  Nebraska,  484;  Inkster  v  687;  Pintard  v.  Davis,  1   Spencer  (N. 

First  Natl.  Bk.  of  Marshall,  30  Mich.  J.)  205;   affirmed   Pintard  v.  Davis,  1 

143;  Langdon  v.  Markle,  48  Mo.  357;  Zabriskie  (N.J.)  205. 
Hartman  v.   Burlingame,  9  Cal.  557;  ^Louisiana  State  Bank  v.  Ledoux,  3 

Dane  v.  Corduan,  24  Cal.  157;  Hickok  La.  An.  674. 
V.  Farmers'  &  Mechanics'  Bank,  35  Vt. 


29G  EIGHTS  or  surety  against  ckeditok. 

plaintiff  for  so  doing.^  Much  may  be  said  in  favor  of  botli  views 
of  this  question  concerning  the  right  of  the  surety,  by  request  and 
without  suit,  to  accelerate  the  movements  of  the  creditor  against 
the  principal.  The  objection  that  the  rule  permitting  it  is  an  in- 
novation, might,  with  equal  propriety,  be  urged  against  most  of 
the  causes  which  are  now  recognized  as  entitling  the  surety  to 
his  discharge.  These  causes  are  the  outgrowth  of  equitable  prin- 
ciples inherent  in  the  relation  of  principal  and  surety;  and  sev- 
eral of  the  most  important  of  them,  which  are  now  nowhere  dis- 
puted, have  been  established  by  decisions  of  the  courts  during  the 
present  century.  The  rule  under  consideration  was  first  an- 
nounced by  the  Supreme  Court  of  New  York,  in  the  year  1816, 
and  is  a  doctrine  recognized  only  by  some  of  the  American  courts, 
no  decisions  to  a  similar  effect  having  been  made  by  the  courts 
of  England.  Although  repudiated  by  a  majority  of  the  courts  of 
the  United  States,  the  rule  is  supported  by  strong  equities,  and  is 
in  harmony  with  the  general  well  recognized  rules  governing  the 
relation  of  principal  and  surety.  Kecognizing  the  justice  and 
equity  of  this  rule,  the  legislatures  of  many  of  the  United  States 
have,  by  statute,  provided  that  the  surety  may,  by  notice,  require 
the  creditor  to  proceed  against  the  principal. 

^  209.  Surety  may  make  the  same  defense  at  la^v  as  in  equity 
— "Whether  he  must  make  his  defense  at  la^v  -when  sued  at  law. 
— "  The  subject  of  equitable  relief  in  behalf  of  sureties  is  one  of 
original  jurisdiction  in  a  court  of  chancery.  The  j^eculiar  rights 
of  a  surety  originated  in,  and  are  exclusively  the  outgrowth  of, 
equity.  Formerly  it  was  held  in  several  instances  that  the  remedy 
of  the  surety  was  only  in  equity,  and  could  not  be  made  avail- 
able in  courts  of  common  law.  But  it  is  now  held  as  a  general 
rule,  tbat  the  liability  of  sureties  is  governed  by  the  same  prin- 
ciples at  law  as  in  equity.  And  probably  with  few  exceptions 
the  same  considerations  which  are  sufiicient  in  equity  to  discharge 
the  surety,  will  be  available  for  the  same  purpose  at  law."^     On 

^  Adams  Bank  v.  Anthony,  18  Pick.  v.  Pierce,  32  New  Hamp.  560;    State 

238.  Bank  v.  Watkins,  6  Ark.  (1  Eng.)  123; 

^Per  Isham,  J.,  in  Viele  v.  Hoag,  Smitti  v.  Clopton,  48  Miss.  66  ;    The 

24Vt.  46.    To  same  effect,   see  Heath  People  tJ.  Jansen,  7  Johns.  332;  Shel- 

V.  Derry  Bank,  44  New  Hamp.   174;  ton  v.  Hurd,  7  Rhode  Is.   403;  Max- 

Samuell  v.  Howarth,  3  Merivale,  272;  well  v.  Connor,  1  Hill  Eq.   (So.  Car.) 

Baker  v.  Briggs,  8  Pick.  122;  Rogers  14;  Wayne  v.   Kirby,   2  Bailey  Law 

t'.  School  Trustees,  46  lU.  428;  Watriss  (So.  Car.)  551 ;  Springer  v.  Toothaker, 


DEFENSES   OF    SUKETY    AT   LAW   AND    IN    EQUITY.  297 

tlie  ground  tliat  the  surety  can  make  the  same  defense  at  law  that 
he  can  in  equity,  it  has  been  held  that  when  sued  at  law  the 
surety  must  avail  himself  of  such  defenses  as  he  can  there  make, 
and  if  he  does  not,  that  he  cannot  afterwards  avail  himself  of 
such  defenses  in  equity,  unless  he  was  prevented  from  so  doing 
by  fraud,  accident  or  the  wrongful  act  of  the  other  party,  without 
any  negligence  or  other  fault  on  his  part.'  On  the  other  hand  it 
has  been  held  that  if  a  surety  wliea-  sued  at  law  does  not  there 
make  his  defense,  and  judgment  is  recovered  against  him,  he  can 
afterwards  come  into  equity  and  have  relief.  The  reason  is  that 
the  discliarge  of  a  surety  was  a  matter  of  original  equity  juris- 
diction, and  the  fact  that  courts  of  law  now  entertain  jurisdic- 
tion of  the  matter,  does  not  oust  equity  of  its  original  jurisdic- 
tion. "  Where  the  jurisdiction  of  courts  of  chancery  and  courts 
of  law  is  concurrent  in  consequence  of  courts  of  law  having  en- 
larged their  jurisdiction  by  their  own  acts,  or  of  its  having  been 
enlarged  by  act  of  the  legislature  without  prohibitory  words,  the 
party  may  make  his  election  as  to  the  tribunal  in  which  he  will 
make  his  defense."  ^ 

§  210.  Whether  surety  having  failed  to  make  defense  at  law, 
can  have  relief  in  equity. — It  has  been  held  that  where  there  is 
no  question  that  the  defense  of  a  surety  can  be  made  at  law,  then 
it  must  be  made  there,  and  the  decision  of  that  tribunal  is  con- 
clusive. "  But  if  it  be  doubtful  whether  a  court  of  law  can  take 
cognizance  of  the  defense,  and  there  exists  no  doubt  of  the  juris- 
diction of  a  court  of  equity,  and  if  in  such  a  case  a  defendant  at 
law  under  the  influence  of  such  doubt  omits  to  make  his  defense, 
or  if  he  bring  it  forward  and  it  be  overruled  under  the  idea  that 
it  is  not  a  defense  at  law,  it  is  not  granting  a  new  trial  for  a  court 
of  equity  to  afford  relief,  notwithstanding  the  trial  at  law."  ^  A 
surety  being  sued  at  law  might  have  made  his  defense  there,  but 

43  Me.  381;  Contra,  Exr.  of  McCallr.  erson  v.   Commissioners  of  Ripley  Co. 

Admr,  of  Evans,  2  Brevard,  (So.  Car.)  6  Ind.  128. 

3.  *  Hempstead  v.  Conway,  6  Ark.   (1 

'  Vilas  w.  Jones,  1   New  York,  274;  En^?.)  317,  per  Oldham,  J.;  Wayland 

Schroeppell  v.  Shaw,  3  New  York,  446;  v.  Tucker,  4  Gratt.i(Va.)  267;  Harlan  r. 

Ramsey  V.  Periey,  34   111.   504;  Ken-  Wingate,   2  J.   J.   Marsh  (Ky.)   138. 

ner  v.  Caldwell.  Bailey  Eq.  Cas.   (So.  Smith  v.  Crease  's  Exr.  2  Cranch  C.  C. 

Car.)  149;  Maxwell  t;.  Connor,  1    Hill  481.  On  this  subject,  see,  also,  Sailly  v. 

Eq.  (So.   Car.)   14;    M'Grew  v.  Tom-  Elmore,  2  Paige  Ch.  R.  497. 
beckbee  Bank,  5  Port  (Ala.)  547;  Her-  ^Kin^  v.   Baldwin,  17  Johns.  384, 

bert  V.  Hobbs,  3  Stew.  (Ala.)  9;  Dick-  per  Spencer,  C.  J.    To  similar  effect, 


208  EIGHTS    OF    SURETY   AGINST    CREDITOR. 

did  not,  and  pending  such  suit  filed  a  bill  in  chancery  for  discov- 
ery, and  setting  up  his  defense  as  surety,  and  it  was  held  he  was 
entitled  to  the  relief  sought  by  his  bill.'  It  has  been  held,  that 
if  a  surety  is  sued  at  law  and  makes  an  unsuccessful  defense 
there,  he  cannot  afterwards  set  up  the  same  defense  in  equity,"  But 
it  has  also  been  held,  that  if  he  sets  up  one  defense  at  law  and  is 
unsuccessful  in  that  he  may  afterwards  set  up  another  defense  in 
equity."  Judgment  was  recovered  against  principal  and  surety, 
and  the  creditor  afterwards  gave  time  to  the  principal.  The 
creditor  afterwards  sued  the  principal  and  the  surety  on 
the  judgment,  and  the  surety  defended  on  the  ground  that 
the  irivino;  of  time  discharo;ed  him,  but  was  unsuccessful 
in  his  defense,  and  judgment  was  rendered  against  him. 
He  then  filed  a  bill  to  restrain  the  second  judgment  at  law, 
setting  up  the  same  matter  of  defense  that  he  had  urged  at  law,  and 
it  was  held  that  he  was  entitled  to  relief.  This  was  put  upon  the 
ground  that  after  the  first  judgment  at  law,  the  relation  of  principal 
and  surety  was  so  far  merged,  that  the  surety  could  not  make  his 
defense  at  law.*  Much  of  the  confusion  of  the  cases  on  this  sub- 
ject has  arisen  from  the  fact  that  originally  most  of  the  defenses 
of  a  surety  had  to  be  made  in  equity,  and  could  not  be  set  up  as 
a  defense  to  a  suit  at  law  and  the  rule  permitting  the  same  de- 
fense to  be  made  at  law  that  would  avail  the  surety  in  equity, 
was  adopted  by  various  courts  at  different  times,  and  is  not  even 
now  fully  recognized  by  all  of  them.  Where  the  surety  can  and 
does  make  his  defense  at  law,  the  great  weight  of  authority  is 
that  the  decision  of  the  court  of  law  is  conclusive  on  him.  The 
weight  of  authority  also  is  that  if  he  can  make  his  defense  at 
law,  but  does  not,  and  judgment  is  rendered  against  him,  he  can- 
not afterwards  hav^e  relief  against  such  judgment  on  any  ground 
which  he  might  have  relied  on  the  suit  at  law.  Where  the  case 
is  such  that  a  court  of  law  will  not  entertain  his  defense,  then  if 
he  had  a  good  equitable  defense,  he  will  be  relieved  from  the 

see  Ratbbone  v.  Warren,    10    Johns.  '  Viele  d.  Hoag,  24  Vt.  46. 

587.     It  has,  however,  been  held,  that  "^  Cooper  v.  Evans,  Law  Rep.  4  Eq. 

a  party  who  failed  to  make  his  defense  Cas.  45. 

at  law  because  he  was  advised  and  ^Davies    v.  Stainbant,    6    De  Gex. 

believed  that  he  could  not  do  so,  could  Macn.  &  Gor.  679. 

not  afterwards  have  relief  in  equity;  *  Dunham  v.  Downer,  31  Vt.  249. 

Dickerson  I'.  Commissioners  of  Ripley 

County,  6  Ind.  128. 


I 


IF  CKEDITOR  MISLEAD  SUKETY  HE  IS  DISCIIAKGED.  299 

judgment  hj  a  court  of  chancery.  A  sheriff  received  certain 
claims  for  collection,  and  collected  them  and  paid  the  proceeds 
over  to  the  person  entitled  to  them,  but  did  not  take  up  his  re- 
ceipt given  for  the  claims.  The  sheriff  died,  and  his  receipt  came 
into  the  hands  of  the  successor  of  the  person  who  gave  the  claims 
to  him  for  collection,  and  he  sued  the  sureties  of  the  slieritT  for 
the  amount  of  the  claims,  and  recovered,  and  thej  paid  the  judg- 
ment. Afterwards,  learning  the  facts,  they  filed  a  bill  to  have  the 
money  they  had  paid  returned  to  them,  and  it  was  held  that  they, 
having  been  guilty  of  no  laches^  and  not  knowing  of  their  de- 
fense when  the  judgment  was  rendered,  were  entitled  to  relief.^ 
§  211.  If  creditor  lead  a  surety  to  believe  debt  is  paid  and 
surety  is  injured,  he  is  discharged. — If  the  creditor  tells  the  surety 
that  the  debt  is  paid  when  in  fact  it  is  not,  and  the  surety  in  con- 
secpaence  thereof  releases  a  security  or  omits  to  secure  himself,  or 
is  in  any  manner  injured  thereby,  the  surety  is  discharged.^  And 
this  is  true,  even  though  the  creditor  is  honestl}'  mistaken  in  the 
statement  which  he  makes.^  The  creditor,  having  caused  the  in- 
jury, should  suffer  it.  The  same  thing  was  held  where  the  surety 
on  a  sealed  note  was  given  b}^  the  payee  a  release  not  under  seal, 
and  induced  to  believe  for  several  years,  and  until  the  principal 
became  insolvent,  that  he  was  discharged.*  So,  where,  after  joint 
judgment  against  principal  and  surety,  the  creditor,  by  his 
statements  to  the  surety,  led  him  to  believe  the  debt  w^as  paid 
and  he  would  not  be  troubled  about  it,  and  these  statements  were 
made  under  such  circumstances  as  to  justify  the  surety  in  be- 
lieving and  acting  on  them,  and  he  was  thereby  induced  to  ab- 
stain from  securing  himself,  when  he  might  easily  have  done  so, 
until  the  principal  became  insolvent,  it  was  held  he  was  dis- 
charged.* The  surety  on  a  note  applied  to  the  holder,  and  told 
him  that  if  he  had  to  pay  the  note  he  wished  to  do  it  soon,  as  he 
could  then  secure  himself ;  to  which  the  holder  replied  tliat  he 
would  look  to  the  principal  for  payment  and  he  need  give  him- 
self no  trouble  about  it.     The  surety  took  no  steps  in  the  matter, 

'Hickman  v.  Hall,  5  Littell   (Ky.)  ^gaker  «.  Bri.o-gs,  8  Pick.  122;  Car- 

338.  penter  r.  King,  9  Met.  (Mass.)  611. 

"Bank  v.  Haskell,  51  New  Hamp.  *Teague  v.  Russell,  2  Stew.  (Ala.) 

116;  High  V.  Cox,  55  Ga.  6G2;  Waters  420. 

V.  Creagb,  4  Stew.  &  Por.  (Ala.)  410;  ^  Roberts  v.  Miles,  12  Mich.  297;  to 

Thornburgli    v.    Marden,     33    Iowa,  similar  effect,  see  White  v.  Walker,  31 

380.  lU.  422. 


300  EIGHTS   OF    SURETY   AGAINST    CKEDITOE. 

but  it  (lid  not  appear  that  the  principal  became  insolvent.  Held,  the 
surety  was  discharged.'  T^he  holder  of  a  promissory  note,  believing 
it  was  paid  in  a  trade  he  supposed  he  had  made  with  the  prin- 
cipal, so  infor.ned  the  surety,  who  knew  nothing  to  the  contrary 
for  five  years.  It  was  not  clear  whether  the  circumstances  of  tlie 
principal  had  become  better  or  worse.  Held,  the  surety  was  dis- 
charged, and  that  it  made  no  diflerence  what  the  circumstances 
of  the  principal  had  become.  The  court  said  the  language  of  tlie 
code  Avas  not  only  ''  injures  the  security,"  but  also  "  exposes 
him  to  greater  liability  or  increases  his  risk."  The  surety  had  a 
right  to  notify  the  creditor,  or  to  pay  the  debt  himself  and  sue 
the  principal;  he  miglit  have  obtained  additional  security,  etc. 
All  these  he  was  deprived  of  and  lulled  to  sleep  for  live  years. 
If  the  principal  remained  solvent,  the  creditor  was  not  injured, 
but  the  surety  was  discharged.^ 

§  212.  When  surety  not  discharged  although  he  believe  debt 
is  paid. —  If  a  note  be  delivered  up  to  be  canceled  by  mistake, 
and  the  payee  before  its  maturity  notify  the  makers  of  the  mis- 
take, and  that  he  still  looks  to  them  for  payment,  it  has  been  held 
that  he  may  recover  upon  the  note  as  well  against  the  surety 
as  against  the  principal,  provided  the  surety  has  not  2:)rior  to  such 
notice,  relying  upon  the  surrender  of  the  note,  relinquished  secu- 
rities held  by  him  for  his  indemnity,  or  been  in  some  manner 
damnilied.'  Where  a  creditor  told  a  surety  that  he  considered 
the  principal  possessed  of  property  sufficient  to  discharge  the 
liability,  that  he  had  given  or  would  give  him  time,  that  tlie  prin- 
cipal would  pay  the  debt,  and  that  he  did  not  want  the  surety  any 
longer,  it  was  held  the  surety  was  not  discharged,  there  being  no 
evidence  that  he  relied  on  such  representations  or  was  injured 
thereb3^■'  The  same  thing  was  held  where  the  surety  said  to  the 
creditor  that  he  must  make  the  debt  out  of  the  principal,  and 
the  creditor  rei)lied  that  he  need  put  himself  to  no  further  troublo 
about  the  debt,  as  he  had  made  a  present  of  it  to  the  principal, 
there  being  no  evidence  that  the  surety  was  injured  thereby." 
The  holder  of  a  note  commenced  suit  on  it,  and  levied  an  attach- 
ment on  the  property  of  the  principal.     The  surety  was  informed 

1  Harris  v.  Brooks,  21  Pick.  195;  to  rick,  4  Vt.  131;  Bullard  v.  Ledbetter,  5 

contrary  effect,  seeMahurinf.  Pearson,  The  Reporter  (Sup.  Ct.  Ga.)  231. 

8  New  Hamp.  539.    "  «  Blodgett  v.  Bickford,  30  (Vt.)  731. 

nVhitaker  t;.   Kirby,   54  Ga.   277.  *Brubakcr  «;.  Okeson,36  Pa.  St.  519. 

On  this  subject,  see  Hogaboom  v.  Her-  ^  Driskell  v.  Mateer,  31  Mo.  325. 


EIGHTS    OF   SURETY    AGAINST    THIRD    PERSONS.  301 

thereof,  and  in  consequence  neglected  to  secure  himself.  After- 
wards the  creditor  dismissed  the  attachment  suit  and  sued  the 
surety.  Held,  the  surety  was  not  discharged,  as  the  creditor  made 
nc  agreement  with,  nor  representation  to,  him  that  he  would  rel  v 
solely  on  the  attachment  or  prosecute  the  suit.^  "Where  the  cred- 
itor knew  that  the  surety  was  negotiating  a  loan  for  the  principal, 
for  the  purpose  of  paying  off  therewith  the  debt  for  which  the 
surety  was  liable,  and  the  creditor  promised  the  principal  without 
consideration  to  give  him  further  time,  and  the  surety  in  conse- 
quence desisted  from  his  attempt  to  raise  the  money,  and  the 
principal  failed  to  pay  the  debt,  it  was  held  the  surety  was  not 
discharged.^  A  having  sent  an  order  to  B  for  certain  goods,  C 
agreed  to  guaranty  payment  to  B  upon  an  undertaking  of  D  to 
indemnify  C.  B  accordingly  informed  C  that  the  goods  were 
preparing,  and  afterwards  shipped  them  to  A  without  notifying 
C  that  they  were  shipped.  Afterwards  D  desired  to  recall  his 
indemnity,  upon  whicli  C  wrote  to  B  to  know  whether  he  had 
executed  the  order,  to  which  no  answer  was  given  by  B  for  a  con- 
siderable time,  he  having  gone  abroad  in  the  interim.  Upon  this, 
C,  supposing  from  the  silence  of  B  that  the  order  was  not  ex- 
ecuted, gave  up  his  indemnity  to  D.  Held,  C  was  not  discharged 
from  his  guaranty.^ 

§  213.  Rights  of  surety  against  third  persons— r-Indemnity 
of  surety. — The  ju'incipal  may,  before  the  debt  has  been  paid  by 
the  surety,  confess  a  judgment  in  favor  of  the  surety  for  liis  in- 
demnity, and  the  lien  of  such  judgment  will  be  valid  as  against 
the  creditors  of  the  principal.*  So  a  conveyance  made  by  the 
principal  to  the  surety,  in  consideration  of  an  agreement  by  the 
surety  to  pay  the  debt,  is  valid  as  against  the  creditors  of  the 
principal.^  The  surety  to  whom  a  chattel  has  been  mortgaged 
by  the  princij)al  for  his  indemnity,  may,  before  paying  the  debt, 
maintain  trover  against  creditors  of  the  principal  who  have  taken 
and  converted  the  chattel.'  And  in  such  case,  one  of  three  sure- 
ties has  a  right  to  recover  damages  if  the  property  is  of  sufficient 

'Barney  v.  Clark,  46  New  Hamp.  (Pa.)  374;  Pringle  v.  Sizer,  2  Richard- 

514.  son,  N.  S.  (So.Car.)  59;  Tcnnell  v.  Jef- 

^  Tucker  v.  Laing,  2  Kay  &  Johnson,  ferson,  5  Harrington  (Del.)  206. 

745.  '  McWhorter  v.  Wright,  5  Ga.  555. 

^  Oxley  V.  Young,  2  H  Blackstone,  ^  Bellume  v.  Wallace,  2    Rich.  Law 

613.  (So.  Car.)  80. 

*  Miller  r.  Howry,  3  Pen.  &  Watts 


302  EIGHTS   OF    SURETY   AGAINST    CREDITOR. 

value,  to  tlie  full  extent  of  the  debt  for  wliicli  he  is  liable,  not- 
withstanding t]ie  fact  that  the  consideration  mentioned  in  the 
mortgage  is  only  one- third  of  the  debt.^  Wliere  projoertj  is  mort- 
gaged by  the  principal  to  a  creditor  to  secure  his  debt,  and  the 
mortgage  is  also  conditioned  that  such  creditor  shall  indemnify 
a  surety  for  any  money  which  he  may  be  obliged  to  pay  to  an- 
other creditor  of  the  principal  to  whom  such  surety  is  liable,  such 
condition  will  be  enforced.^  Where  a  surety  has  become  bound, 
but  has  a  right  to  withdraw  from  his  obligation,  aiT  agreement 
for  his  indemnity,  afterwards  given  by  a  third  person  in  consid- 
eration of  his  remaining  bound,  is  a  valid  contract,  and  the  con- 
sideration is  sufficient.^  But  where,  after  a  surety  had  become 
bound,  a  third  person,  in  consideration  that  he  would  remain 
bound  an  indefinite  time,  agreed  in  writing  to  indemnify  him 
from  loss,  it  was  held  that  the  agreement  for  indemnity  was  void 
for  want  of  consideration,  as  the  surety  had  assumed  no  liability 
beyond  that  which  existed  when  the  agreement  for  indemnity 
was  made.*  A  surety  who  holds  the  written  agreement  of  a  third 
person,  conditioned  for  his  indemnity,  does  not  waive  such  agree- 
ment by  afterwards  taking  security  for  his  indemnity  from  the 
principal.^  The  principals  in  a  note  agreed  with  their  surety  that 
if  he  would  sign  it,  they  would  keep  him  indemnified  by  the  use 
and  application  of  a  particular  fund,  as  the  surety  might  desire, 
or  that  they  would  secure  him  in  any  other  way  he  might  sug- 
gest. Held,  this  did  not  give  the  surety  a  lien  on  the  particular 
fund,  and  it  could  not  afterwards  be  assigned  to  him  when  the 
principal  was  in  failing  circumstances,  so  as  to  cut  oif  other  cred- 
itors. The  surety  having  an  option  to  take  the  particular  fund 
or  some  other  security,  no  lien  was  created.* 

§  214.  Surety  entitled  to  benefit  of  collaterals — Creditor  not 
bound  to  notify  surety,  when. — Where  bank  bills  have  been  re- 
ceived from  the  princi]3al  by  the  creditor  as  a  collateral  security 
for  the  debt,  it  lies  on  the  creditor,  in  a  suit  against  a  surety  for 
the  same  debt,  to  show  what  has  been  done  with  them.^  A  cred- 
itor who  holds  railroad  bonds  as  collateral  security,  does  not  lose 

'  Barker  v.  Buel,  5  Gushing,  519.  ■*  Rix  v.  Adams,  9  Vt.  233. 

Ttodes  V.  Crockett,  2  Yerg.  (Tenn.)  ^Drurj  v.  Fay,  14  Tick.  o2Q;    gene- 

'^'^-  rally  on  the  subject  of  indemnity,  see 

^  Carroll  v.  Nixon,  4  Watts  &  Serg.  Seavor  v.  Young,  16  Vt.  658. 

(Pa.)  517;  Cai-man  v.  Noble,  9  Pa.  St.  ^  Elliott  v.  Harris,  9  Bush  (Ky.)  237. 


366. 


'  Spalding  v.  Bank,  9  Pa.  St.  28. 


CEEDITOR  TELLING  SURETY  SIGNING  IS  A  MATTER  OF  FORM.     303 

his  right  to  hold  tlie  bonds  by  suing  the  principal,  and  imprison- 
ing him  upon  getting  judgment.  JSTor  does  he  waive  his  lien  on 
such  bonds  if  he  promise,  without  consideration,  to  give  them 
up.^  AVhere  the  note  of  a  stranger  is  received  by  a  creditor  from 
his  debtor  as  collateral  security  for  a  debt,  the  creditor  is  not 
bound  to  notify  the  debtor  of  a  proposition  of  the  maker  of  the 
note  to  discharge  it  in  property,  though  by  a  failure  of  the  credi- 
tor to.  receive  such  property,  the  amount  of  the  note  is  ulti- 
mately lost.^  Where  a  submission  to  abitration  is  made  by  a 
written  agreement,  a  surety  in  the  agreement  need  not  be  notified 
of  the  sitting  of  the  arbitrators,  "  The  reasons  for  such'  notice 
are  no  stronger  than  they  would  be  for  notice  to  bail  of  the  pro- 
gress of  the  cause  against  the  principal."  *  The  payee  of  a  note 
is  not  bound  to  notify  one  of  several  makers  of  a  note  who  is  a 
surety,  of  non-payment  by  the  principal,  and  an  agreement  with 
the  principal  not  to  notify  the  surety,  will  not  be  such  a  fraudu- 
lent concealment  as  will  discharge  him.  "If  the  plaintiff's  not 
giving  notice  could  not  be  fraudulent,  could  his  agreement  not  to 
do  it  be  so?  Could  his  agreeing  not  to  do  what  he  was  under  no 
moral  or  legal  obligation  to  do,  be  a  fraudulent  concealment.  * 
An  agreement  not  to  inform,  and  an  agreement  to  conceal,  are 
two  very  different  things."  * 

§  215.  Surety  not  discharged  because  creditor  tells  him  his 
signing  is  a  mere  matter  of  form — Other  cases. — AVhere  the 
creditor  has  no  security  for  his  debt  but  the  joint  and  several  bond 
of  sitreties  with  their  principal,  he  has  a  right  to  call  upon  any 
one  of  the  sureties  to  pay  it,  and  a  court  will  not  delay  enforcing 
his  claims  until  the  several  remedies  against  the  other  sureties 
may  be  exhausted.^  Where  the  surety  on  a  note  given  for  prop- 
erty purchased  at  administrator's  sale,  when  requested  by  the 
principal  to  sign  it,  was  told  by  the  payee  that  his  signature  was 
only  wanted  as  a  form  to  comply  with  the  requirements  of  the 
ordinary,  it  was  held  that  no  fraud  was  thereby  practiced  on  the 
surety  which  avoided  the  note  as  to  him.     The  court  said  it  was 

1  Smith  V.  Strout,  63  Me.  205.     The  ^  Farmer  v.  Stewart,  2  New  Eamp. 

surety  has  a  right  to  insist  that  a  col-  97,  per  Woodbury,  J. 

lateral  security  shall  be  so  applied  as  *  Grover  v.  Hoppock,  2  Dutcher  (N. 

to  reliave  hini;  Kirkman  r.  Bank  of  J.)  191,  per  Vredenburgh,  J. 

America,  2  Cold.  (Tenn.)  397.  ^  Lowndes  v.  Pinckney,  2  Strob.  Eq. 

2 Rives  V.  McLosk  ■,  5  Stew.  &  Port.  (So.  Car.)  44. 
(Ala.)  330. 


304:  EIGHTS    OF   SURETY    AGAINST    CKEDITOR. 

SO  common  to  say  to  a  surety,  when  getting  liim  to  sign,  tliat  it 
was  a  mere  matter  of  form,  that  it  deceives  no  one,^  Where  the 
])ayee  of  a  note  merely  advises  the  principal  to  carry  his  property 
to  a  better  market  out  of  the  State,  and  sell  it  and  pay  his  debts, 
and  if  unable  to  pay  all  to  ipQ,j pro  rata,  it  is  not  a  fraud  upon, 
and  will  not  operate  as  a  release  of,  the  sureties  on  the  note.^ 
The  deed  or  bond  of  a  surety  under  seal  for  the  simple  contract 
debt  of  a  principal,  in  which  the  principal  does  not  join,  does  not, 
by  operation  of  law,  extinguish  the  simple  contract  debt  of  the 
principal,^ 

§  216.  Surety  may  defend  suit  against  principal — Hovr  lia- 
bility of  surety  affected  by  fraud — Other  cases. — A  surety  has 
a  right  for  his  own  protection  to  defend  an  action  against  his 
principal.*  The  holder  of  a  mortgage  assigned  it  with  a  guaran- 
ty that  there  was  a  certain  amount  due  on  it.  The  assignee  in 
his  own  name  sued  the  maker,  and  recovered  a  less  amount  than 
that  guarantied  to  be  due,  and  the  guarantor  made  and  desired 
to  argue  a  motion  for  new  trial,  and  told  the  assignee  that  unless 
he  was  allowed  to  argue  the  motion,  he  should  consider  himself 
discharged.  The  assignee  stated  that  he  did  not  want  a  new  trial 
in  the  case,  and  refused  to  allow  the  guarantor  to  argue  the  mo- 
tion, and  judgment  was  thereupon  entered  for  the  smaller  sum. 
It  did  not  appear  whether  there  was  sufficient  ground  for  a  new 
trial,  but  the  court  said  the  guarantor  had  a  right  to  argue  the 
motion,  and  it  was  a  valuable  right  of  which  the  assignee  would 
not  be  permitted  to  deprive  him,  and  it  was  held  that  he  was  dis- 
charged.^ A  bond  with  surety  was  conditioned  that  a  lessee 
would  complete  certain  improvements  on  premises  therein  describ- 
ed within  four  years.  Before  the  exjjiration  of  that  time  the  les- 
sor lawfully  ejected  the  lessee  from  the  preiuises.  Held,  the 
surety  was  not  bound  for  the  completion  of  the  improvements,  as 
the  lessor  had,  although  lawfully,  prevented  them  from  being 
completed."  Although  the  release  of  the  principal  in  a  bond 
may  have  been  obtained  by  a  fraud  practiced  by  him  upon  the 
obligee,  yet  if  the  surety  was  not  a  party  to   the  fraud,   and  the 

>  Smyley  v.  Head,  2  Rich.  Law  (So.  ■*  Jewett  v.  Crane,  35  Barb.   (N.  Y.) 

Car.)  690.  208. 

2  Hawkins  r.  Ridenhour,     13    Mo.  ^  Stark  ?'.  Fuller,  42  Pa.  St.  320. 

125.  «  Trustees  of  Section  Sixteen  v.  Mil- 

^  White  V.  Cuyler,  6  Durn.   &  East,  ler,  3  Ohio,  261.  * 

176. 


SURETY    RECOVEEIXG   BACK   MOSEY   PAID.  305 

obligee  suffers  several  years  to  elapse  witlioiit  bringing  suit  or 
notifying  the  surety  of  the  fraud,  during  wliicli  time  the  princi- 
pal becomes  insolvent,  these  circumstances  will  discharge  the 
surety/  After  a  surety  had  in  fact  been  discharged  by  time  giv- 
en the  principal,  the  attorney  of  the  principal  represented  to  the 
surety  that  he  was  not  discharged,  and  the  surety  relying  there- 
on, deposited  certain  title  deeds  as  security  for  the  debt,  and  after- 
wards, in  order  to  regain  possession  of  such  deeds  gave  certain 
notes.  Held,  the  surety  was  not  liable  on  such  notes.  The 
court  said  that  money  paid  by  mistake  might  be  recovered  back, 
and  on  the  same  principle  the  surety  had  a  defense  to  the  notes.^ 
Where  F  was  induced  through  fraudulent  representations  of  the 
vendor  to  purchase  a  patent-right,  and  "W"  was  also  induced  there- 
b}^  to  deposit  with  the  vendor  a  government  bond  as  security  that 
r  would  pay  the  purchase  price,  and  the  patent  was  worthless,  and 
F  repudiated  the  sale,  it  was  held  that  W  might  recover  the 
amount  of  the  bond  in  an  action  against  the  vendor,  and  that 
his  remedy  was  not  alone  against  F,  his  principal.'  Joint  judg- 
ment having  been  recovered  against  principal  and  surety,  tlie 
surety  pointed  out  property  which  he  said  belonged  to  the  prin- 
cipal and  told  the  sheriff  to  levy  on  it,  which  he  did,  and  it  was 
sold  to  the  creditor  for  the  amount  of  the  debt.  Two  years  after- 
wards the  surety  released  a  mortgage  wliich  he  held  for  his  in- 
demnity. The  principal  had  in  fact  no  title  to  the  property  sold, 
and  became  insolvent.  Held,  the  surety  was  not  discharged. 
He  had  not  been  misled  and  injured  by  the  creditor,  but  on  the 
contrary  had  misled  and  injured  the  creditor.^ 

§  217.  When  surety  cannot  recover  back  monejr  paid  by  Iiim 
to  creditor — Party  Awho  is  indebted  may  become  surety,  and  secure 
suretyship  debt  to  exclusion  of  other  creditors — Other  cases. — 
If  a  surety,  with  full  knowledge  of  facts  which  will  discharge  him, 
pays  tlie  debt,  he  cannot  recover  back  the  amount  so  paid  from 
the  creditor.  He  had  a  right  to  waive  his  defense,  and  by  paying 
does  so.*  A  surety  who  pays  a  judgment  rendered  by  a  court 
below  against  the  principal,  which  is  afterwards  reversed  on  error 

'Gordon  v.  McCarty,    3    Wharton  -^ Wile  v.  Wright.  32  Iowa,  451. 

(Pa.)    407;     McCarty    v.    Gordon,    4  ^Chambers  v.   Cochran,    18    Iowa, 

Wharton  (Pa.)  821.  159. 

^Bristow  V.  Brown,  13  Irish  Com.  ^  Goary  v.  Gore  Bank,  5  Grants'  Ch. 

Law  Rep.  201.  R.  536. 

20 


306  EIGHTS   OF    SURETY   AGAINST    CREDITOR. 

at  tliG  suit  of  tlie  principal,  cannot  recover  tlie  amount  so  paid 
from  the  creditor.  The  payment,  although  in  fact  made  by  the 
surety,  is  in  law  a  paj-inent  by  the  principal.^  A  surety  who  has 
paid  the  debt  of  the  principal,  cannot  recover  indemnity  from  a 
party  who  has  agreed  with  the  principal  to  pay  the  debt,  there 
being  no  privity  between  the  surety  and  such  party.^  Money  was 
loaned  to  a  corporation  on  its  bond  and  mortgage,  and  the  stock- 
holders became  individually  liable  as  sureties  for  the  repayment 
of  the  loan.  Held,  that  other  creditors  of  the  corporation  had 
no  equity  to  compel  the  lender  to  exhaust  his  remedy  against  the 
sureties  before  resorting  to  the  corporation  for  payment.^  In  con- 
sideration of  an  extension  of  time  given  to  one  firm,  another  firm 
executed  a  mortgage  on  its  property  to  secure  the  debt.  At  that 
time  the  firm  which  executed  the  morto^ai^e  had  creditors  who 
afterwards  filed  a  bill  to  set  aside  the  mortgage  as  fraudulent 
against  them.  Held,  they  were  not  entitled  to  relief.  The  court 
said  the  mortgage  was  not  voluntary,  but  was  founded  on  a  good 
consideration,  viz:  the  extension  of  time  to  the  principal  debtor. 
A  person  or  firm  that  is  indebted,  may  become  snrety  for  another, 
the  same  as  if  such  person  or  firm  was  not  indebted,  and  such 
suretyship  debt  will  be  as  valid  as  any  other  debt,  and  may  be 
secured  by  the  surety  the  same  as  any  other  debt." 

§  218.  Surety  may  enforce  trust  made  for  his  benefit  without 
his  knowledge — Other  cases. — Where  a  conveyance  of  land  is 
made  by  absolute  deed,  and  the  grantee  gives  back  to  tlie  grantor 
a  written  contract,  promising  to  sell  the  land  at  a  certain  time, 
and  to  pay  two  notes  with  the  proceeds,  and  to  j^s^y  the  balance 
to  the  grantor,  such  grantee  holds  the  land  in  trust,  and  it  is  his 
duty  to  sell  the  same  at  the  time  specified,  and  apply  the  proceeds 
as  provided  by  the  contract;  and  if  a  third  person  be  a  surety  on 
one  of  the  notes,  althoucch  he  mio-ht  not  have  known  of  the  trust 
when  it  was  undertaken,  yet  after  he  is  informed  of  it,  and  can 
enforce  its  execution,  the  original  parties  to  it  cannot  annul  it, 
and  he  can  enforce  it  in  equity.^  Ileal  property  was  mortgaged 
by  a  debtor  to  his  surety  to  indemnify  him  against  his  indorse- 

'Garr  v.  Martin.  20  New  York,  306.  624.     To   a  contrary  effect,  when  the 

'  Hoffmann  v.   Schwaebe,  33  Barb.  firm  became  surety  for  one  of  its  mem- 

(N.  Y.)  194.  bers,     see  Kidder  v.   Page,   48  New 

'  South  Carolina  Manf.  Co.  v.  Bank,  Hamp.  380. 

6  Rich.  Eq.  (So.  Car.)  227.  '  Pratt  v.  Thornton,  28  Me.  355. 

*  Allen  V.  Morgan,  5  Humph.  (Tenn.) 


MISCELLANEOUS    CASES.  307 

nients,  and  also  to  secure  $3,000,  due  from  tlie  principal  to  the 
surety:  Held,  the  creditors  might,  by  suit  in  chancery,  reach  the 
property  thus  mortgaged,  but  the  surety  as  to  the  $3,000,  should 
share  with  the  creditors  jt??'0  rata}  Where  the  principal  assigns 
a  fund  to  trustees  to  pay  a  creditor  whom  the  surety  afterwards 
pays,  and  the  proceeds  of  the  fund  are  then  paid  over  in  money 
by  the  trustees  to  the  administrator  of  the  principal,  the  surety 
is  entitled  to  the  benefit  of  the  fund,  and  may  recover  it  from 
the  administrator  in  an  action  in  his  own  name  for  money 
had  and  received.*  Where  lands  are  conveyed  to  a  trustee  by 
the  principal,  to  be  sold  for  the  benefit  of  iiis  sureties,  the  sureties 
may  bid  and  purchase  at  the  trustees'  sale  the  same  as  a  stranger.^ 
The  creditors  of  a  party  resolved  to  accept  a  composition  payable 
in  three  instalments,  there  being  a  surety  for  the  paj^ment  of  the 
third  instalment.  Before  the  resolution  accepting  the  composi- 
tion was  passed,  the  debtor  had  agreed  with  the  surety  to  indem- 
nify him  by  depositing  goods  with  him  and  this  agreement  was 
not  made  known  to  the  creditors.  After  the  resolutions  were 
registered,  the  surety  accepted  bills  of  exchange  for  the  amount 
of  the  third  instalment  of  the  composition,  and  certain  goods 
were  deposited  with  him  by  the  principal.  The  principal  paid 
the  first  instalment,  but  failed  to  pay  the  second,  and  thereupon 
filed  a  liquidation  petition.  Afterwards  the  surety  paid  the  third 
instalment.  Held,  the  agreement  with  the  surety  for  indemnity 
was  valid,  and  he  was  entitled  to  retain  the  goods  as  against  the 
trustee,  under  the  liquidation.  The  creditors  had  no  specific  lieu 
on  tlie  property,  and  after  the  composition  was  accepted  the  prin- 
cipal might  do  as  he  pleased  with  it.*  A  became  surety  for  B, 
who  agreed  orally  to  give  A  a  mortgage  on  a  house  and  lot  for 
indemnity,  and  to  insure  the  house  for  his  benefit,  which  he  did, 
the  policy  of  insurance  being  payable  to  A.  Afterwards,  B  sold 
the  house  and  lot  to  C,  who  took  it  with  a  knowledge  of  the  fore- 
going facts.  C  canceled  the  policy  of  insurance  on  the  house 
and  took  out  a  new  one,  payable  to  himself.  The  house  was 
burned,  and  it  was  held  that  A  was  entitled  in  equitj'^  to  have  the 
insurance  money  applied  in  exoneration  of  his  liability  for  B." 

^  New  London  Bank  v.  Lee,  11  Ct.  *^Ex  parte  Burrell  7m  re  Robinson, 

112.  Law  Rep.  1  Chancery  Div.  537. 

2 Miller  v.  Ord,  2  Binney  (Pa.)  382.  '^Miller  v.  Aldrich,  31  Mich.  408. 
3  Landis  r.  Curd,  63  Mo.  104. 


308  EIGHTS   OF   SUliETY    AGAINST   CEEDITOK. 

It  lias  been  held  that  the  principal,  or  if  he  be  dead,  his  personal 
representative,  is  a  necessary  party  to  suit  in  chancery  against 
the  surety  on  a  lost  note.^  It  has  also  been  held  that  the  cashier 
of  a  bank  has  no  authority,  by  virtue  of  his  office,  to  release  a 
surety  upon  a  negotiable  instrument  held  by  the  bank,  unless  he 
is  officially  empowered  so  to  do.^ 

§  219.  When  surety  for  a  portion  of  a  debt  entitled  to  share 
in  dividend  of  estate  of  insolvent  principal — Other  cases. — If  a 
party  gives  a  guaranty  in  which  his  liability  is  limited  to  a  spec- 
ified sum,  to  secure  to  that  extent  any  floating  balance  which  may 
become  due  the  creditor  from  the  principal,  and  the  principal  be- 
comes insolvent,  owing  the  creditor  more  than  the  amount  lim- 
ited in  the  guaranty,  such  guarantor  is  entitled  to  share  in  the  div- 
idend, out  of  the  estate  of  the  principal,  where  there  is  not 
enough  of  such  estate  to  pay  the  balance,  above  the  amount  of  the 
guaranty  due  the  creditor.^  But  if  the  intention  is  to  guaranty 
the  whole  debt  to  the  extent  of  the  amount  mentioned  in  the 
guaranty,  then  the  guarantor  is  not  entitled  to  a  share  in  such 
dividend.  Upon  this  subject  the  court  said  it  was  a  mere  ques- 
tion of  construction  of  the  guaranty,  and  proceeded:  "  The  class 
of  cases  referred  to,  do  not  lay  down  any  general  doctrine  that 
where  there  is  a  surety,  with  a  limit  on  the  amount  of  his  liabil- 
ity for  the  whole  debt  exceeding  that  limit,  he  is  entitled  to  the 
benefit  of  a  ratable  proportion  of  the  dividends  paid  on  the  whole 
debt;  but  only  that  where  the  surety  has  given  a  continuing  guar- 
anty, limited  in  amount,  to  secure  the  floating  balance  which  may 
from  time  to  time  be  due  from  tlie  principal  to  the  creditor,  the 
guaranty  is  as  between  the  surety  and  the  creditor,  to  be  construed 
both  at  law  and  in  equity,  as  applicable  to  a  part  only  of  the  debt, 
co-extensive  with  the  amount  of  his  guaranty,  and  tliis  upon  the 
ground  at  first  confined  to  equity,  but  afterwards  extended  to  law, 
that  it  is  inequitable  in  the  creditor,  who  is  at  liberty  to  increase 
the  balance,  or  not  to  increase  it,  at  the  expense  of  the  surety."-* 

'  Greathouse  v.  Hord,  1  Dana  (Ky.)  paid.     As  to  the  power  of  an  attorney 

105.  at  law,  by  virtue  of  his  office,  to  do  acts 

^  Daviess  Co.  Sav.  Ass 'n  v.  Sailor,  which  will  discharge  a  surety,  see  Giv- 

G3  Mo.  24;  Merchants  Bank  v.  Rudolf,  ens  v.  BriscoerS  J.  J.  Marsh  "(Ky.)  529. 

5  Nebraska,  527.    These  two  cases  do  ^  jjobson  v.  Bass,  Law  Rep.  6  Chan- 

not  agree  as  to  whether  the  surety  is  eery  Appl.  Gas.  792. 

discharged  by  representations  made  by  ■*  Ellis  v.   Emmanuel,   Law  Rep.  1 

the  cashier  to  the  surety  that  the  debt  is  Exch.  Div.  157,  per  Blackburn,  J. 


MISCELLANEOUS    CASES,  309 

It  lias  been  held,  that  upon  tlie  insolvency  of  the  principal,  a 
snretj  is  considered  in  equity  as  a  creditor,  and  may  retain 
against  an  assignee  for  value,  and  without  notice,  any  funds  of 
the  principal  which  he  has  in  his  hands.^  But  where  an  attach- 
ment act  provided  that  if  the  debtor  was  "  truly  indebted  "  to  the 
person  in  whose  hands  the  property  was  at  the  time  of  the 
service  of  the  attachment  writ,  such  person  might  retain  it  to  pay 
his  debt,  and  an  attachment  was  levied  on  property  of  the  princi- 
pal, in  the  hands  of  a  surety,  which  had  not  been  pledged  to  the 
surety,  for  his  indemnity,  and  the  surety  had  not  then  paid  the 
debt,  it  was  held,  the  surety  could  not  retain  the  property .'^ 

1  Battle  V.  Hart,  2  Dev.  Eq.  (Nor.  *  Tongue  v.  Linton,  6  Rich.  Law  (So, 

Car.)  31.  Car.)  275. 


CHAPTER  XL 


OF   THE   RIGHTS  OF  SURETIES   AND   GUARANTORS  BETWEEN 
EACH  OTHER CONTRIBUTION. 


Section. 

The  right  to  contribution  subsists 
between  co-sureties.  Reasons 
upon  which  it  is  founded  .         .  220 

Co-sureties  bound  by  different  in- 
struments liable  to  contribu- 
tion     221 

Instances  where  sureties  bound  by 
different  instruments  held  liable 
to  contribution  ....  222 

It  makes  no  difference  with  the 
right  to  contribution,  that  one 
surety  does  not  know  that  an- 
other became  bound  as  such      .  223 

When  sureties  for  the  same  debt 
not  liable  to  contribution.  In- 
Btances      ....*.  224 

When  accommodation  parties  to 
negotiable  instruments  are  co- 
sureties       225 

The  true  relation  between  several 
sureties  may  be  shown  by  parol 
evidence 226 

Surety  who  becomes  bound  during 
course  of  remedy  against  prin- 
cipal, not  co-surety  with  origi- 
nal surety  ....  227 

Contribution  cannot  be  recovered 
when  it  would  be  inequitable     .  228 

When  surety,  who  becomes  liable 
at  the  request  of  another  sure- 
ty, not  Uable  to  contribution    .  229 

Surety  of  surety  not  liable  to 
contribution      ....  230 

Surety  who  becomes  principal  lia- 
ble for  whole  amount  paid  by 
foinner  co-surety.    Other  cases  231 
Surety  wdao  pays  debt  for  which 
principal  or  another  surety  is 


Section, 
not  liable,  cannot  have  contri- 
bution         232 

When  one  surety  entitled  to  ben- 
efit of  indemnity  secured  by  an- 
other surety       ....  233 

Instances  of  indemnity  taken  by 
one  surety  inuring  to  the  benefit 
of  all  the  sureties      .        .        .  234 

If  surety  surrender  lien  for  his  in- 
demnity on  property  of  princi- 
pal, he  discharges  co-surety 
from  contribution      .        .        .  235     \ 

If  surety  negligently  lose  indem- 
nity, co-surety  released  from 
contribution       ....  236 

Surety  who  obtains  indemnity  af- 
ter all  the  sureties  have  paid  an 
equal  amount,  is  not  obliged  to 
share  it  with  the  others     .        .  237 

When  suit  for  contribution  can  be 
brought  by  surety  holding  in- 
demnity     238 

Surety  may,  before  paying  debt, 
file  bill  to  Compel  co-surety  to 
contribute,  and  to  restrain  him 
from  transferring  his  property     239 

Discharge  of  surety  in  bankrupt- 
cy does  not  release  him  from 
contribution  to  co-surety,  who 
pays  subsequently     •        .        .  240 

Wlien  surety  who  is  discharged 
from  liability  to  creditor,  liable 
to  contribute  to  co-surety,  who 
subsequently  pays     .        .        .  241 

Rights  of  bail  who  pay  the  debt 
against  principal  and  sureties 
for  the  debt       .        .        .        .242 

When  surety  who  pays  judgment 


(310) 


EIGHT    TO    CONTKIBUTION    SUBSISTS    BETWEEN    CO-SUKETIES.      311 


Section. 
may    have    execution    therefor 
against  co-snrety      .        .        .  243 

How  Hability  to  contribution  af- 
fected by  giving  of  time  to  one 
of  several  co-sureties  .        .  244 

Contribution  as  affected  by  release 
of  principal  or  of  co-surety.  Fail- 
ure of  consideration.  Set-off, 
etc 245 

How  far  judgment  against  one 
surety  evidence  against  co-sure- 
ty in  suit  for  contribution.  Fail- 
ure of  consideration  .        .  246 

When  surety  can  recover  contribu- 
bution  for  costs  paid  by  him     .  ^47 

Estate  of  deceased  co-surety  liable 
for  contribution  .         .         .  248 

Surety  who  pays  by  his  note  may 
recover  contribution  from  co- 
surety         249 

What  contribution  surety  who 
pays  in  land  entitled  to  recover  250 

When  surety  who  has  paid  less 


Section. 
than  his  share  of  the  debt  can- 
not recover  contribution     . 

In  what  proportions  co-sureiies 
are  liable  to  contribute 

Surety,  may  recover  contribution 
either  at  law  or  in  equity 

Whether  surety  must  show  insolv- 
ency of  the  principal  in  order  to 
recover  contribution 

When  suit  for  contribution  should 
be  joint,  and  when  several 

Who  not  necessary  parties  to  a 
bill  for  contribution,  etc.  . 

Surety  may,  without  compulsion, 
pay  debt  when  due.  and  imme- 
diately sue  co-surety  for  contri- 
bution, without  demand  or  no- 
tice      

When  liability  to  contribution  at- 
taches       .... 

When  claim  for  contribution 
baiTed  by  the  statute  of  limita- 
tions .... 


251 


252 


253 


254 


255 


256 


257 


258 


259 


§  220.  The  right  to  contribution  subsists  betvyeen  co.-sureties 
— Reasons  upon  which  it  is  founded. — The  principal  question 
wliicli  arises  between  co-sureties,  is  that  of  contribution.  The  right 
to  contribution  results  from  the  maxim  that  equal  ity  is  equity.  The 
creditor  may  collect  all  the  debt  from  the  principal  or  any  one  of 
several  sureties,  or  he  ma}^  collect  from  every  surety  his  proper 
proportion.  If,  having  this  right,  he  collects  it  all  from  one  sui-ety, 
tlie  law  clothes  such  surety  with  the  same  power,  and  enables  him 
to  enforce  contribution.  "Natural  justice  says  that  one  surety 
having  become  so  with  other  sureties,  shall  not  have  the  whole 
debt  thrown  upon  him  by  the  choice  of  the  creditor,  in  not  re- 
sorting to  remedies  in  his  power,  without  having  contribution 
from  those  who  entered  into  the  obligation  equally  with  him. 
The  obligation  of  co-sureties  to  contribute  to  each  other  is  not 
founded  in  contract  between  them,  but  stood  upon  a  principle  of 
equity  until  that  principle  of  equity  bad  been  so  long  and  so 
generally  acknowledged,  that  courts  of  law  in  modern  times 
have  assumed  jurisdiction.  This  jurisdiction  of  the  courts  of 
common  law  is  based  upon  the  idea  that  the  equitable  principle 
bad  been  so  long  and  so  generally  acknowledged  and  enforced, 


313  EIGHTS    Oy    SUKETIES    BETWEEN    EACH    OTHEr.. 

that  persons  in  placing  themselves  under  circumstances  to  which 
it  applies,  may  be  supposed  to  act  under  the  dominion  of  con- 
tract, implied  from  the  universality  of  that  principle.  For  a 
^"•reat  length  of  time  equity  exercised  its  jurisdiction  exclusively 
and  individually;  the  jurisdiction  assumed  by  courts  of  law  is 
comparatively  of  very  modern  date.*  It  has  also  been  said  that 
"This  right  to  contribution  has  been  considered  as  depending 
i-ather  upon  a  principle  of  equity  than  upon  contract;  but  it  may 
well  be  considered  as  resting  alike  on  both  for  its  foundation;  for 
although  generally  there  is  no  express  agreement  entered  into  be- 
tween joint  sureties,  yet  from  the  uniform  and  almost  universal 
understanding  v/hich  seems  to  pervade  the  whole  community, 
that  from  the  circumstance  alone  -of  their  agreeing  to  be,  and 
becoming  accordingly  co-sureties  of  the  principal,  they  mrutually 
become  bound  to  each  other  to  divide  and  equalize  any  loss  that 
may  arise  therefrom  to  each  other,  or  any  of  them,  it  may  with 
great  propriety  be  said  that  there  is  at  least  an  implied  contract."' 
§  221.  Co-sureties  bound  by  difTerent  instruments  liable  to 
contribution. — Co-sureties  are  liable  to  contribution,  but  sureties 
for  the  same  principal  wdio  are  not  co-sureties  are  not  so'liable. 
Much  of  the  learning  on  this  subject  is  devoted  to  who  are  and 
who  are  not  co-sureties.  "Where  all  the  sureties  sign  the  same 
instrument  and  become  equally  bound  thereby,  they  are  of  course 
co-sureties  and  liable  to  contribute  to  each  other.  So,  also,  when 
several  sureties  become  bound  for  the  debt,  default  or  miscarriage 
of  the  same  principal,  wdth  reference  to  the  same  transaction, 
even  though  they  become  bound  by  different  instruments,  at  dif- 
ferent times  and  for  different  amounts,  they  are  generally  consid- 
ered co-sureties  and  held  liable  to  contribution.  In  the  leading 
case  on  this  subject  the  principal  was  receiver  of  tiie  fines  and 
forfeitures  of  the  customs  of  the  outports,  and  to  secure  the  per- 
formance of  his  duties  gave  three  separate  bonds  in  the  same  pen- 
alty, but  sighed  by  diflierent  sureties.  It  was  held  that  the  sure- 
ties in  the  three  bonds  were  liable  to  each  other  for  contribution. 
The  court  said:  "If  a  view  is  taken  of  the  cases,  it  will  appear 
that  the  bottom  of  contribution  is  a  fixed  principle  of  justice, 
and  is  not  founded  in  contract.  ''^  In  the  particular  case  of  sure- 
ties, it  is  admitted  that  one  surety  may  compel  another  to  con- 

'  Lansdale  v.  Cox,  7  T.  B.  Mon.  (Ky.)  «  Agnew  v.   BeU,  4  Watts  (Pa.)  31, 

401,  per  Bibb,  C.  J.  per  Kennedy,  J. 


CO-SUKETIES    BOUND    BY   DIFFEKENT   INSTEUMENTS.  313 

tribute  to  tlie  debt  for  whicli  tbey  are  jointly  bound.  On  wliat 
principle?  Can  it  be  because  they  are  jointly  bound?  AVliat  if 
they  are  jointly  and  severally  bound?  What  if  severally  bound 
by  tlie  same  or  different  instruments?  In  every  one  of  those 
cases  sureties  have  a  common  interest  and  a  common  burtiien. 
They  are  bound  as  efi'ectually  quoad  contribution  as  if  bound  in 
one  instrument,  with  this  difference  only,  that  the  sums  in  each 
instrument  ascertain  the  proportions,  whereas  if  they  are  all 
joined  in  the  same  engagement,  they  must  all  contribute  equally."  * 
§  223.  Instances  -where  sureties  bound  by  different  instruments 
held  liable  to  contribution. — Where  an  administrator  upon  as- 
suming the  duties  of  his  office,  gave  bond  with  sureties,  and  eight 
years  afterwards,  upon  being  required  to  do  so,  gave  an  additional 
bond  with  other  sureties,  it  was  held  that  the  sureties  on  both 
bonds  were  liable  to  contribnte  to  each  otlier.^  The  same  thing 
was  held,  where  an  injunction  was  issued  upon  a  bond  given  with 
one  surety,  which  surety  was  held  to  be  insufficient,  and  a  new 
bond  was  given  with  two  other  sureties.^  Where  a  sheriff  had 
been  required,  nnder  an  act  of  the  legislature,  to  procure  addi- 
tional security,  and  had  at  different  times  entered  into  new  bonds 
with  new  sureties,  it  was  held  that  all  the  sureties  on  all  the 
bonds  were  liable  to  contribution."  Execution  was  taken  out 
against  D  as  principal,  and  A  and  B  as  sureties,  and  lev- 
ied on  the  goods  of  D,  who  gave  a  forthcoming  bond,  in  which  A, 
B  and  E  were  bound  as  sureties  for  D.  Execution  was  issued  on 
the  fortlicoming  bond,  and  E  was  compelled  to  pay  the  debt. 
Held,  E  was  co-surety  with  A  and  B,  and  not  a  surety  for  them, 
and  could  recover  contribution  from  them  as  co-sureties,  but  not 
full  indemnity,  as  if  they  were  principals.^  A  bond  was  executed 
by  A  as  principal,  and  B  and  C  as  sureties,  with  the  stipulation 
tiiat  the  sureties  should  not  be  discharged  by  any  new  arrange- 
ment between  the  creditor  and  the  principal,  B  compounded  with 
his  creditors.     The  bond  became  due  and  payable,  and  the  cred- 

'  Deering  r.  The  Earl  of  Wincliel-  gave  two  bonds;  B-jirsAdmr.i'.  Jasper, 

sea,  2  Bos.  &  Pul.  270,  per  Eyre,  C.  2  Ired.  Eq.  (Nor.  Car.)  597. 

B.;  Id.  1  Cox,  318.   See,  also,  Mayhew  ^Bentley  v.  Harris'  Admr.  2  Gratt. 

V.  Crickett,  2  Swanston,  193;  Breckin-  (Va.)  358. 

ridge  v.  Taylor,  5  Dana  (Ky.)  110.  *  Harris  v.  Ferguson,  2  Bailey  Law 

••'Cobb  V.  Haynes,  8  B.  Mon.  (Ky.)  (So.  Car.)  .397. 

137;  the  same  thing  was  held,  where  a  *  Pen-ins  v.  Ragland,  5  Leigh  (Va.) 

guardian  under  similar  circumstances  552. 


314  EIGHTS   OF    SURETIES    BETWEEN    EACH    OTHER. 

itor  threatening  to  sue  unless  A  got  another  surety  in  place  of  B, 
one  D,  by  a  separate  writing,  became  liable  for  the  whole  amount 
of  the  bond,  "  according  to  the  tenor  thereof."  D  was  compelled 
to  pay  the  bond,  and  it  was  held  he  was  entitled  to  contribution 
from  C.  The  court  said  that  D  became  surety  for  the  same  debt 
for  which  C  was  surety,  "  and  in  that  case,  in  whatever  way  he 
became  surety,  if  the  other  surety  is  called  on  to  pay,  he  must 
contribute."  *  In  another  case,  A  and  B  as  principals,  gave  a  note 
to  C,  with  D  as  surety  thereon.  C  sold  and  indorsed  the  note  to 
E.  To  obtain  further  time,  A  and  B  proposed  to  give  a  new  note 
with  D  and  F  as  sureties.  E  declined  to  give  up  the  old  note  or 
receive  the  new  one  in  its  stead,  unless  C  would  become  a  party  to 
the  new  note,  and  C  thereupon  signed  it,  adding  after  his  name 
the  words  "  as  security."  Held,  that  C,  D  and  F  were  co-sure- 
ties, and  that  D,  who  had  paid  the  note,  was  entitled  to  contribu- 
tion from  C  and  F.  The  court  said  that  :  "  Whenever  several  per- 
sons are  sureties  bound  for  the  same  duty,  they  stand  in  the  rela- 
tion of  co-sureties,  and  are  liable  to  contribution.  *  Nor  will 
their  becoming  sureties  at  different  times,  without  the  knowledge 
of  each  other,  or  even  by  different  instruments,  affect  their  obli- 
gation." ^ 

§  223.  It  makes  no  difference  •with  the  right  to  contribution, 
that  one  surety  does  not  know  that  another  became  bound  as 
such. —  As  the  right  to  contribution  results  from  equitable  prin- 
ciples, and  not  from  express  contract,  such  right  is  not  at  all 
affected  by  the  fact  that  the  surety  seeking  contribution,  or  from 
whom  it  is  sought,  had  no  knowledge  that  the  other  had  assumed 
the  obligation  of  a  surety  for  the  same  thing.  Thus  it  has  been 
held  that  a  surety,  who  becomes  such  without  the  knowledge  of 
one  who  is  already  bound  and  pays  the  debt,  may  recover  contri- 
bution from  the  first  surety.^  j^  as  principal,  and  B  and  C,  as 
sureties,  signed  a  note,  but  the  fact  of  suretyshi]3  did  not  appear 
therefrom.  The  holder  afterwards  became  dissatisfied  with  the 
solvency  of  the  signers  of  the  note,  and  A  procured  D  to  sign 
the  note  under  the  names  of  the  other  signers  thereof,  upon  a 

1  AVhitinj?  V.  Burke,  Law  Rep.  6  Ch.  » Chaffee  v.   Jones,    19   Pick.   260. 

Appl.  Cas.  342,  per  James,  L.  J.;  affirm-  Holding  that  no  agreement  is  neces- 

ing,  Whiting  f.  Bm-ke,  Law  Rep.  10  sary  to  entitle  sureties  who  sign  a  note 

Eq.  Cas.  539.  at  different  times  to  contribution  from 

^  Woodworth    v.   Bowes,  5    Ind.  (3  each  other;  see  Warner  v.  Morrison,  3 

Port.)  276,  per  Stuart,  J.  AUen,  566. 


WHEN  SURETIES  FOK  SAME  DEBT  NOT  LIABLE  TO  CONTRIBUTE.    315 

consideration  moving  from  A  to  D.  Afterwards  A  became  in- 
solvent, and  C  was  obliged  to  pay  the  note.  Held,  he  was  en- 
titled to  contribution  from  D.  The  court  said  that  the  right  to 
contribution  exists  only  among  those  sureties  wlio  are  liable  for 
the  same  thing.  But  equity  looks  at  substance  more  than  form, 
and  if  several  persons  enter  into  contracts  of  suretyship,  which 
are  the  same  in  their  legal  character  and  operation,  though  by 
different  instruments,  at  different  times,  and  without  the  knowl- 
edge of  each  other,  they  w^ill  be  bound  to  mutual  contribution.' 
In  another  case.  A,  B  and  C  signed  a  note,  B  and  C  being  sure- 
ties, but  that  fact  not  appearing  from  the  note,  A,  being  in  pos- 
session of  the  note,  asked  D  to  sign  it,  telling  him  B  and  C  were 
princi23als.  D  thereupon  signed  it,  adding  after  his  name  the 
word  "surety."  D  was  obliged  to  pay  the  note,  and  it  was  held 
that  he  could  recover  contribution  from  B  and  C  as  co-sureties, 
but  could  not  recover  indemnity  from  them  as  principals.* 

§  224.  When  sureties  for  the  same  debt  not  liable  to  contri- 
bution— Instances. — Where,  after  principal  and  surety  had  signed 
a  note,  a  third  party  also  signed  it,  and  added  to  his  signature  the 
words  "  surety  for  the  above  parties,"  it  was  held  that  such  third 
party  was  not  a  co-surety  with  the  first  surety,  and  was  not  liable  to 
him  for  contribution.  The  Court  said:  "The  defendant  had  a 
right  to  qualify  his  contract,  as  he  pleased,  consistent  with  the 
rules  of  law.  lie  refused  to  sign  as  a  co-surety  with  the  other 
sureties,  but  did  sign  as  surety  for  the  whole,  in  which  there  was 
certainly  nothing  unlawful."  ^  It  has  been  held  that,  "  where 
separate  bonds  are  given  with  different  sureties,  and  one  is 
intended  to  be  subsidiary  to,  and  a  security  for  the  other  in  case 
of  default  in  the  payment  of  the  latter,  the  sureties  in  the  second 
bond  would  not  be  compellable  to  aid  those  in  the  first  bond  by 
contribution."  *  Where  several  sureties  became  bound  by  separ- 
ate bonds  for  the  same  amount  on  account  of  one  principal  to  the 
same  creditor,  but  the  amount  of  all  the  bonds  did  not  equal  the 

Hlonson  V.  Drakeley,  40  Cfc.  552.  (Miss.)  532;  Keith  v.  Goodwin,  31  Vt. 

*  Whitehouse  v.  Hanson,  42    New  268. 

Hamp.  9;  to  similar  effect,  see  Norton  ^Harris  v.  Warner,  13  Wenrl.  400, 

V.  Coons,  3  Denio,  130;  see,  also,  War-  per  Nelson,  J. 

ner  tJ.  Price,  3  Wend.  397;   McNeil  t?.  *Salyer.s  v.  Ross,  15  Ind.  130,  per 

Sanford,  3  B.  Mon.  (Ky.)  11;  Beaman  Davison,    J.     To  similar  effect,    see 

v.   Blauchard,   4  Wend.   432;  contra.  Whitman  v.  Gaddie,  7  B.  Mon.  (Ky.) 

Hunt  r.  Chambliss,  7  Smedes  &  Mar.  591. 


r.  10  KuniTS  ov  sriM:'i'ii:s  hictwki^n  kacii  OTincu. 

8U1U  iluo  iVoiu  tlio  principal  to  the  eroilitor,  it  was  lield  tliat 
every  surety  being  houiul  lor  an  individual  sum,  iJiey  were  not 
co-sureties,  und  there  was  no  right  to  contribulioji  between  Ihein.' 
A  being  indebted  to  J>  in  l-2()0l.,  0,  D  and  E,  each  separately, 
agreed  to  beconio  A's  surety  by  a  separate  instrument  for  400^. 
0  and  D  each  executed  a  separate  instrument  witli  A,  to  B,  in 
tlie  sum  of  -UM)!.,  but  K  wouhl  not  execute  any  instrument.  0, 
being  sued,  chiimed  to  be  diseluu'ged,  because  1*^  had  not  executed 
an  instrument  as  agreed.  The  Lord  Chancel K>r  thouiiht  the 
agreements  of  0,  1)  and  E  to  become  sureties  had  no  connection 
M'ith  each  other,  and  if  E  had  executed  tlio  instrument,  as  agreed, 
lie  would  not  have  been  co-surety  with  0,  and  0  Avas,  therelore, 
not  discharged.''  In  another  case,  A  borrowed  money  on  ;i  nuirt- 
gago  of  his  estates  i)  and  S,  to  which  B,  a  prior  incumbrancer 
on  estate  I),  and  C,  a  prior  incumbrancer  on  estate  S,  were  ]iar- 
ties,  and  consented  to  give  the  mortgage  priority  over  their 
respective  charges,  but  it  was  stated  in  the  mortgage  that  they 
joined  for  no  other  purpose.  The  lauds  were  subse(][uently  sold, 
and  the  mortgage  paid  out  of  the  joint  proceeds.  The  residue 
of  the  fund  produced  by  the  sale  of  estate  S  was  not  sullicient  to 
pay  C's  incumbrance.  Held,  0  was  not  entitled  to  contribution 
against  1>,  there  not  having  been  any  common  liability  to  pay  a 
common  demand.  The  Court  said:  "The  foundation  of  the 
right  (to  contribution)  is  *  a  common  liability  for  a  demand 
upon  the  ]iarties  in  common.  Now,  in  the  present  case,  there  is 
no  ci)mmou  liability  for  a  common  demand.  Ivu'h  ]iarty  agreed 
upon  his  own  behalf  to  ]>ostpone  his  own  particular  charge.  It  has 
so  turned  out,  that  by  reason  of  a  deticient  i'und,  there  is  not  sulli- 
cient io  pay  all  tlu>charges,  and,  therefore,  the  parties  givingprior- 
ity  have  lost  their  respective  charges.  l)Ut  where  is  the  comnion 
liability  for  the  same  demand  ?  There  being  no  common  liability, 
there  is  no  foundation  for  any  e(piities  among  themselves."^ 

^  225.  Whoa  accommodation  parties  to  negotiable  instru- 
ments are  co-sureties. — The  weight  of  authority  is,  that  succes- 
sive accommodation  indorsers  of  nciiotiable  instruments  are  not, 
in  the  absence  of  an  agreement  to  that  effect,  co-sureties,  nor 
liable  to  contribution  as  between  each  other.^     To  constitute  the 

'  Fi'mllobury  r.  Wallcor,  4  Youngo  '^In  re  Koily,  1)  Irish  Ch.  11.  87,  p;T 

&  Coll.  (Ivxcli.)  i'2i.  Brady,  C. 

'Coopo  r.Twyiiain,  1  Turner  it  Russ,  *Slierrotl   r.    Rliodos,  5   Ala..    GS3; 

4'2G,  per  Lord  Eldon.  McCiirty  r.  Roots,  21  Howard  (U.  S.) 


KELATION  BETWEEN  CO-SUEETIES  MAY  BE  SHOWN  BY  PAROL.    317 

relation  of  co-sureties  between  such  indorsers,  tliere  must  be  an 
agreement  to  that  effect  between  them,  or  some  fact  or  circum- 
stance must  e?:ist  from  which  such  an  agreement  can  be  inferred. 
If  a  binding  agreement  to  that  effect  is  establislied,  such  indor- 
sers will  be  held  liable  to  contribution  as  co-sureties.  But  it 
has  been  held  that  such  an  agreement  made  between  such  indor- 
sers after  they  have  signed,  and  without  any  new  consideration, 
is  not  binding.  And  where,  after  a  note  was  due,  the  first  and 
second  indorsers  wrote  a  letter  to  the  creditor,  stating  they  were 
jointly  liable,  and  asking  for  time,  it  was  held  that  this  did  not 
render  them  co-sureties.'  It  has  been  held  that  the  accommoda- 
tion indorser  of  a  note  is  not,  in  the  absence  of  an  agreement  to 
that  effect,  liable  as  co-surety  with  a  surety  who  signed  the  note 
on  its  face,  as  malcer.^  So  it  has  been  held  that  a  stranger  who, 
in  terms,  guaranties  a  note  on  its  back  is  not,  in  tlie  absence  of  an 
agreement  to  that  effect,  a  co-surety  with  a  surety  who  had  pre- 
viously signed  it  on  its  face.^  A,  for  the  purpose  of  raising  money 
for  himself,  drew  a  bill  on  B,  which  B  accepted  for  A's  accomm<5- 
datlon.  Being  unable  to  get  the  bill  discounted  without  a  third 
name,  A  procured  C  to  indorse  it.  The  bill  being  unpaid  at  ma- 
turity, the  holder  agreed  to  renew  it,  and  accordingly  a  new  bill 
was  drawn  by  B  upon  A,  and  indorsed  by  C :  Held,  that  B,  who 
had  the  bill  to  pay,  was  entitled  to  contribution  from  C.''  It  has 
been  lield  that  the  mere  fact  that  one  party  drew  and  another  in- 
dorsed a  bill  of  exchange  for  the  sole  accommodation  of  another, 
did  not  establish  the  fact  that  they  were  co-sureties,  but  it 
might  be  shown  by  parol  that  they  were  co-sureties.^  Prima 
facie^  an  indorser  of  a  promissory  note  is  not  a  co-surety  with  a 
surety  who  signs  the  note  as  maker,  but  it  may  be  shown  by  parol 
evidence  that  they  were,  in  fact,  co-sureties." 

§  22G.      The    true    relation    between    several   sureties    may    bo 
shown  by  parol  evidence. — It  is  a  general  rule  that  the  true  re- 

4o2;    McC!une  v.   Belt,  45    Mo.  174;  '^  Smith  v.  Smith,  1  Devereux,   Eq. 

Stillwell    V.   How,   46  Mo.   589.    To  (Nor.  Car.)   173;  Brig-gs  v.  Boyd,   37 

contrary  effect,  see  Lanson  v.  Paxton,  Vt.  534  ;  Dawson  v.  Pettway,  4  Dev. 

'<'2  Up.  Can.  C.  P.  R.  505;  Daniel  v.  &  Batt.  Law  (Nor.  Car.)  396. 

McRae,    2    Hawks  (Nor.  Car.)    590;  "Long-ley  «;.  Griggs,  10  Pick.  121. 

Richards   v.  Simms,  1  Dev.  &    Batt.  ^Reynolds  v.  Wheeler,  10  J.  Scott 

Law  (Nor.  Dar.)  48.  (N.  S.)  561. 

'Cathcart    v.    Gibson,    1    Richard-  ^  Dunn  v.  Sparks,  7  hid.  490. 

son  Law  (So.  Car.)  10.     See,  also,  on  ^Nurrev.  Chittenden,  56  Ind.  4G2. 
this  point,  Dunn  v.  Wade,  23  Mo.  207. 


318  KIGIITS    OF    SUKETIES    BETWEEN    EACH    OTIIEK. 

lation  subsisting  between  the  several  parties  bound  for  the  per- 
formance of  a  written  obligation,  may  be  shown  by  parol  evi- 
dence. An  unwritten  agreement  made  between  such  parties 
prior  to,  or  contemporaneously  with,  their  executing  an  instru- 
ment as  sureties,  by  which  one  promises  to  indemnify  the  other 
from  loss,  may  be  proved  by  parol,  and  the  surety  who  made  the 
agreement  cannot,  in  such  case,  recover  contribution  from  the 
other/  In  such  a  case  the  Court  said:  "  The  legal  effect  of  a 
written  contract  is  as  much  within  the  protection  of  the  rule 
which  forbids  the  introduction  of  parol  evidence,  as  its  language. 
"  But  we  think  it  is  limited  to  the  stipulations  between  the 
parties  actually  contracting  with  each  other  by  the  written 
instrument."  The  liability  to  contribution  does  not  arise 
from  contract,  but  from  equitable  principles.  There  is  no 
agreement  between  the  sureties  contained  in  the  obligation 
signed  by  them.  The  agreement  is  between  the  obligors 
and  the  obligee.  As  between  the  various  sureties  there 
is"  no  written  agreement;  there  is  only  an  equitable  pre- 
sumption raised  by  the  fact  of  payment,  that  the  sureties 
ought  to  contribute  equally  for  the  default  of  the  principal. 
This  equity  can  be  rebutted  by  parol.  ^  Where  several  parties 
sign  an  obligation,  and  one  of  them  adds  after  his  name  tlie 
word  "  surety,"  it  may  be  shown  by  parol  he  is  surety  for,  or  co- 
surety with,  the  other.  The  word  "surety"  indicates  that  he  is 
surety  for  somebody,  but  does  not  show  for  whom.^  It  is  com- 
petent for  one  of  two  sureties  on  a  promissory  note,  to  prove  by 
parol  that  he  signed  as  surety,  both  of  his  principal  and  the 
other  surety,  and  on  an  undertaking  by  the  other  surety  to  in- 
demnify him.  The  Court  in  deciding  such  a  case  said:  "  It  is 
not  offering  parol  evidence  to  vary  or  explain  the  ^vritten  con- 
tract; it  was  a  collateral  contract,  independent  of,  and  consistent 
with,  it.  The  law  regards  all  joint  signers  of  an  obligation  as 
principals.  It  is  by  assuming  an  equitable  jurisdiction  that 
evidence  is  admitted  of  some  of  the  parties  having  signed  as 

'  Craytliorne  v.  Swinburne,  14  Vesey,  effect,  see  Paulin  v.  Kaighn,  3  Dutchcr 

160;  Hunt  v.  Chambliss,  7  Smedes  &  (N.  J.)  503. 

Mar.  (Miss.)  532;  Rae  v.  Rae,  6  Irish  s^ioijingon  ^_  Lyle,  10  Barb.  (N.  Y.) 

Ch.  R.  490.      To  contrary  effect,  see  512;  Adams  v.  Flanagan,  36  Vt.  400. 

Norton  v.  Coons,  6  New  Y  ork,  33.  See,  also,  on  this  point,  Fernald  v.  Daw- 

*  Barry  v.  Ransom,  12  New  York,  ley,  26  Me.  470;   Crosby  v.  Wyatt,  23 

462,  per  Dennis  and  Dean  J  J.   To  same  Me.  156. 


SURETY  BOUND  DURING  COURSE  OF  REMEDY  AGAINST  RRINCIPAL.      319 

sureties,  and  tliere  is  nothing  to  forbid  the  further  evidence  of 
their  having  fixed  and  arranged  their  respective  liabilities  as 
between  themselves  bj  their  own  contract."  ^  Tlie  surety  on  the 
face  of  a  note,  and  an  accommodation  indorser  may,  as  between 
themselves,  be  shown  by  parol  to  be  co-sureties  by  virtue  of  a 
verbal  understandino;  to  that  effect.'^  So  several  successive  accom- 
modation  indorsers  of  a  negotiable  instrument  may  be  shown  by 
parol  to  be  co-sureties.^  In  an  action  by  one  surety  against  an- 
other for  contribution,  parol  evidence  of  the  payment  made  by 
the  plaintiff,  is  admissible  and  sufficient,  notwithstanding  it  was 
made  upon  an  execution,  which  is  not  produced,  issued  on  a 
judgment  against  the  principal  and  sureties.* 

§  227.  Surety  "wrho  becomes  bound  during  course  of  remedy 
against  principal,  not  co-surety  xvith  original  surety. — A  surety 
who  becomes  bound  for  a  debt  during  the  course  of  legal  pro- 
ceedings against  the  principal  for  the  collection  of  the  same,  is 
not  a  co-surety  with  the  original  surety  for  the  debt,  nor  entitled 
to  contribution  from  him,  and  if  such  original  surety  afterwards 
has  to  pay  the  debt,  he  is  entitled  to  subrogation  to  the  creditor's 
rights  against  such  subsequent  surety,  and  may  collect  the  whole 
amount  that  he  has  paid  from  such  subsequent  surety.  "Where  a 
judgment  was  recovered  against  principal  and  surety,  and  the 
principal  alone  appealed,  giving  a  different  surety  on  the  appeal 
bond,  and  the  judgment  was  affirmed,  and  was  paid  by  the  surety 
in  the  appeal  bond,  it  was  held  tliat  he  could  not  recover  contri- 
bution from  the  original  surety.^  Judgment  was  rendered  against 
A  and  B  in  the  County  Court,  and  they  appealed  to  the  Circuit 
Court,  giving  C  as  surety  on  the  appeal  bond.  Judgment  was 
rendered  against  all  three  of  them  in  the  Circuit  Court,  and  they 
all  appealed  to  the  Supreme  Court,  and  gave  an  appeal  bond  as 
principals,  with  D  as  their  surety.  The  judgment  was  afiirmed 
in  the  Supreme  Court,  and  was  paid  by  C:  Held,  C  could  not 
recover  contribution  from  D."     If,  after  separate  judgments  are 

^  Anderson  v.  Pearson,  2  Baily  Law  ^  Chaffin    v.     Campbell,     4     Sneed 

(So.  Car.)  107.  (Tenn.)  184. 

^'Harshman  v.  Armstrong,  43  Ind.  ^ Cowan  v.  Duncan,  Meig-s  (Tenn.) 

126.  470.     To  a  similar  effect,  in  the  case  of 

^Clapp  V.  Rice,  13  Gray,  403;  Smith  sureties   on   a  supersedeas  and  stay 

v.  Morrill  54  Me.  48.  bond,  see  Smith's  Exrs.  v.  Anderson, 

*  Hay  den  «.  Rice,  18  Vt.  353.  18  Md.  520;    Kellar  v.  Williams,  10 

Bush  (Ky.)  216. 


320  EIGHTS  or  sureties  between  each  otiiee. 

obtained  against  principal  and  surety,  a  third  person  interposes 
and  gives  liis  note  for  the  debt  to  o])tain  a  stay  of  execution,  and 
•judynient  is  obtained  on  the  note,  and  then  the  first  snrety  is 
obb'o-ed  to  pay  the  debt,  he  is  entitled  to  have  an  assignment  of 
the  judgment  on  the  note  of  such  third  person,  to  indemnify 
him  for  such  payment.  The  surety  is  entitled  to  subrogation  to 
every  security  which  the  creditor  obtains  for  the  payment  of  the 
debt.  The  second  "  surety  stipulating  at  the  instance  of  the  prin- 
cipal to  pay  the  debt,  suffers  no  absolute  injustice  in  being  obliged 
to  do  so,  since  he  is  compelled  to  perforna  no  more  than  he  under- 
took, and  has  no  right  to  complain  that  he  is  not  allowed  to  use 
as  payment  by  himself,  the  money  which  proceeds  from  another 
person  whom  liis  principal  was  previously  bound  to  save  harm- 
less. '•''  It  is  sufficient  that  it  is  settled  that  if  the  interposition 
of  the  second  surety  may  have  been  the  means  of  involving  the 
first  in  the  ultimate  liability  to  pay,  the  equity  of  the  first  surety 
decidedly  preponderates."  '  An  execution  was  issued  against  a 
principal  and  sureties,  and  the  principal  alone  obtained  an  in- 
junction to  stay  the  judgment,  and  gave  an  injunction  bond  with 
a  difierent  suret}''.  The  surety  in  the  injunction  bond  having 
been  compelled  to  pay  the  judgment,  it  was  held  that  he  could 
not  recover  contribution  from  the  original  sureties.  "Without 
their  solicitation  he  had  prolonged  their  liability,  by  preventing 
the  money  being  made  out  of  their  ]3rincipal,  as  it  would  have 
been  but  for  his  interference.  To  make  them  contribute  would 
be  grossly  inequitable.''  Judgment  was  recovered  against  a  prin- 
cipal and  sureties,  and  execution  was  levied  on  the  property  of 
one  of  the  sureties,  who  executed  a  forthcoming  bond  with 
another  of  the  sureties  (whose  property  had  not  been  levied  on), 
as  his  surety  in  the  forthcoming  bond,  and  tlie  bond  was  forfeited. 
Tlie  surety  in  the  forthcoming  bond  paid  the  debt,  and  it  vi^as 
held  that  he  was  entitled  to  contribution  from  ail  the  sureties  for 
the  debt.^  It  has  been  held,  that  wliere  judgment  is  recovered 
against  one  surety,  the  suing  out  a  writ  of  error  to  the  Supreme 
Court  by  him  and  giving  bond  for  its  prosecution,  does  destroy 

'  Pott  V.  Nathans,  1  Watts  &  Serg.  bond,  see  Mitchell  v.  De  Witt,  25  Texas 

(Pa.)  155,  per  Sargent,  J.  ;    Clay  v.  (Supplement)  180. 

Schnitzell,  5  Phila.  (Pa.)  441;  Schnit-  -^Brandenburg  v.  Flynn's  Exr.  1-2  B. 

zelFs  appeal,  49  Pa.  St.  23.     Holding  Men.  (Ky.)  397;  Bohannon  v.  Combs, 

the  same  thing  in  the  case  of  an  origi-  12  B.  Mon.  (Ky.)  563. 

nal  sm-ety  and  a  surety  on  an  appeal  » Preston  v.  Preston,  4  Gratt.  (Va.)  88. 


NO    CONTEIBUTION    WHEN    INEQUITABLE.  321 

his  riglit  to  contribution  from  a  co-surety  bound  with  him  for  the 
debt  on  which  the  judgment  was  recovered.' 

§  228.  Contribution  cannot  be  recovered  when  it  -wrould  be 
inequitable. — As  the  riglit  to  contribution  between  co-sureties  is 
founded  on  equitable  principles,  contribution  will  not  be  enforced 
between  them  when  it  would  be  inequitable.  Thus,  two  parties, 
A  and  B,  were  sureties  of  C.  On  one  occasion,  when  some  of  C's 
land  was  being  sold,  he  endeavored  to  stifle  competition  at  the 
sale,  and  the  land  was  sold  to  B  for  more  than  as  much  less  than 
it  was  worth  as  A  and  B  were  liable  for  as  sureties.  Afterwards 
B  had  the  debt  to  j^ay,  and  in  a  suit  by  him  for  contribution,  it 
was  held  that  he  either  bought  and  held  the  land  for  0,  or  bought 
it  for  himself  by  C's  efforts,  at  enough  less  than  it  was  worth  to 
indemnify  him,  and  he  was  not  entitled  to  contribution  from  A. 
The  court  said:  "  The  right  to  contribution  amongst  sureties  rests 
not  in  contract,  but  in  natural  equity.  '^'  If  a  party  base  his 
right  to  recover  upon  principles  of  natural  equity,  the  defendant 
may  appeal  to  the  same  principles  in  his  defense."  *  A,  B  and  C 
were  sureties  for  D  in  a  bond,  and  judgment  was  recovered 
against  A,  B  and  D,  but  not  against  C.  Execution  was  sued  out 
and  levied  on  the  property  of  D,  who  gave  a  forthcoming  bond, 
in  which  A,  B,  and  a  third  party  joined  as  sureties.  Execution 
was  awarded  on  the  forthcoming  bond,  and  levied  on  the  proper- 
ty of  A.  Held,  he  could  not  recover  contribution  from  C.  The 
money  would  have  been  made  from  the  property  of  the  principal 
if  the  last  bond  had  not  been  given,  and  it  was  inequitable  that 
C  should  suffer  by  the  giving  of  such  bond.'  So,  where  A,  B 
and  C  were  co-sureties,  and  judgment  was  recovered  against  them 
all,  and  execution  was  levied  on  proj)erty  of  A,  who  gave  a  forth- 
coming bond,  with  B  as  surety,  and  this  bond  was  forfeited  and 
the  property  lost,  and  A  became  insolvent,  and  B  paid  the  debt, 
it  was  held  that  B  could  only  recover  from  C,  as  contribution, 
one-third  of  the  amount  paid  by  him,  instead  of  one-half,  which 
he  would  otherwise  have  been  entitled  to  recover.*  "Where  prop- 
erty is  conveyed  to  a  trustee,  to  indemnify  a  surety  for  various 

^  John  V.  Jones,  16  Ala.  454.  12  Ala.  83.     See,  also,  Wells  v.  Miller, 

^Dennis  v.  Gillespie,  24  Miss.  581,      66  New  York,  255. 
per  Fisher,  J.     For  a  special  case  on  ^  Langford's  Exr.  v.  Perrin,  5  Leigh 

this  subject,  see  McGehee  v.  McGehee,      (Va.)  552. 

*  Preston  v.  Preston,  4  Gratt.  (Va.),  88. 

21 


322  EIGHTS   OF    SURETIES    BETWEEN    EACH    OTHEK. 

indorsements,  and  by  agreement  between  the  principal  and  snretj, 
the  property  is  sold  in  a  certain  way,  and  in  consideration  tliere- 
of  the  surety  agrees  to  pay  all  the  debts  of  the  principal,  for 
which  he  is  bound  as  surety,  and  does  pay  a  debt  contemplated 
by  the  agreement,  on  which  there  is  a  co-surety,  he  cannot  re- 
cover contribution  from  such  co-surety.* 

§  229.  "When  surety,  -who  becomes  liable  at  the  request  of 
another  surety,  not  liable  to  contribution. — If  one  surety  in  or- 
der to  induce  another  to  become  bound  as  surety,  agrees  to  in- 
demnify him  from  all  loss  which  he  may  suffer  in  consequence 
thereof,  such  an  agreement  is  valid  and  will  be  enforced.^  The 
weight  of  authority  is,  also,  that  if  one  surety  becomes  bound  at 
and  solely  because  of  the  request  of  another  surety,  even 
though  there  be  no  express  agreement  on  the  part  of  the  latter 
to  indemnify  the  former,  yet  the  surety  making  the  request,  if  he 
is  compelled  to  pay  the  debt,  cannot  recover  contribution  from 
the  surety  who  signed  in  consequence  of  such  request.  "With 
reference  to  this  it  has  been  said:  "  AYhere  one  has  been  induced 
to  become  surety  at  the  instance  of  the  other,  though  he 
thereby  renders  himself  liable  to  the  person  to  whom  the  securi- 
ty is  given,  there  is  no  j^retense  for  saying  that  he  sliall  be  liable 
to  be  called  upon  by  the  person  at  whose  request  he  entered  into 
the  security."  ^  If,  however,  a  surety  becomes  bound  at  the  re- 
quest of  the  principal,  coupled  with  the  request  of  another  sure- 
ty, it  has  been  held  that  he  is  liable  for  contribution  to  the 
surety  who  joins  with  the  principal  in  making  the  request.*  It 
has  also  been  held  that  the  mere  fact  that  one  surety  became  such 
at  the  request  of  another,  did  not  release  the  former  from  liabil- 
ity to  contribute  to  the  latter.  This  was  in  one  case  put  on  the 
ground  that  there  was  an  implied  contract  between  co-sureties  to 
contribute,  and  a  simple  request  by  one  to  the  other  to  become 
surety  was  not  sufficient  to  rebut  the  presumption  of  such  im- 
plied contract.^  As  already  seen,  the  right  to  contribution  results 
from  equitable  principles,  and  contribution  will  not  in  the  ab- 
sence of  express  contract  be  enforced  contrary  to  equity.     It  may 

'  John  V.  Jones,  16  Ala.  454.  ban,  6  Gill  &  Johns.  (Md.)  250;  Dan- 

'^  Jones  V.  Letcher,  13  B.  Mon.  (Ky.)  iel  v.  Ballard,  2  Dana  (Ky.)  296. 

363.  4  Hendricks    v.     Whittemore,     105 

^Turner  r.  Davies,  2  Esp.  478,  per  Mass.  23. 

Lord  Kenyon;   Cutter    v.   Emery,  37  ^Bagott  t--.  Mullen,  32  Ind.  332;  Mc- 

New  Hamp.  567;  Byers  v.   McClana-  Kee  v.  Campbell,  27  Mich,  497. 


SrKKTY    OF    SURETY    XOT    ENTITLED    TO    CONTEIBUTION.  323 

well  be  said  tliat  it  would  be  inequitable  to  compel  tlie  party  who 
became  bound  at  the  request  of  another,  to  contribute  to  that 
other,  if  a  loss  is  sustained  in  consequence  of  the  assumption  of 
such  liability. 

§  230.      Surety    of    surety    not    liable    to    contribution. — The 

surety  of  a  surety  is  not  generally  liable  to  contribution  at  the 
suit  of  the  party  for  whom  he  is  surety.  Thus,  the  plaintiff 
signed  a  note  as  surety,  upon  the  erroneous  supposition  spring- 
ing from  the  deceit  and  falsehood  of  the  principal,  and  in  no  way 
imputable  to  the  defendants,  that  the  defendants  would  sign  as 
co-sureties  with  him.  Afterwards  the  defendants,  in  good  faith 
and  without  any  knowledge  of  what  the  plaintiff  supposed  as  to 
their  signing,  signed  the  note,  upon  the  distinct  understanding 
with  the  principal  and  the  payee  that  the}''  signed  as  sureties  for  tha 
plaintiff  and  other  previous  signers,  and  not  as  co-sureties  with 
the  plaintiff.  Held,  they  did  not  thereby  become  co-sureties  with 
the  plaintiff,  nor  were  they  liable  to  him  for  contribution.' 
Where,  after  certain  sureties  had  signed  a  note,  another  signed  it, 
and  added  to  his  name  the  words  "  security  to  above,"  it  was 
held  that  the  first  sureties  could  not  recover  contribution  from 
the  latter  unless  it  was  made  satisfactorily  to  appear  that  he  in- 
tended to  become  co-surety  with  them."  A  being  indebted,  and 
the  creditor  pressing  for  payment,  an  application  was  made  byB 
to  a  bank,  which  advanced  the  money  on  two  bonds,  one  of  which 
was  signed  by  A  as  principal  and  C  as  surety.  The  other  bond 
recited  the  first  one,  and  the  advance  of  the  money  to  A  and  C  at 
the  request  of  B,  and  was  conditioned  to  be  void  if  A  and  C,  or 
either  of  them,  paid  the  first  bond.  It  was  understood  by  parol 
between  B  and  the  bank  that  he  was  not  to  be  liable  unless  both  A 
and  C  f^iiled  to  pay,  and  that  he  was  not  a  co-surety  with  either  of 
them.  Held,  that  C,  upon  paying  the  debt  could  not  recover 
contribution  from  B.  The  court  said  that  B  "  might  limit  his 
engagement  with  reference  to  them  as  he  thought  proper,  and  the 
bond  upon  the  face  of  it  makes  him  surety  only  for  the  principal 
and  the  other  surety."^     Where  A,  the  surety  in  an  undertaking 

'  Adams  v.  Flanagan,  36  Vt.  400.  '  Craythomet?.  Swinburne,  14  Vesey, 

'^Thompson   t'.   Sanders,  4  Dev.  &  160;  per  Lord  Eldon,  C.    Totheeffect 

Bat.  Law  (Nor.  Car.)  404.     See,   also,  that  a  surety  of  a  surety  is  liable  to 

Sherman  v.  Black,  49  Vt.  198;  Oldham      contribution,  see  Cooke  v.  ,  Free- 

V.  Broom,  28  Ohio  St.  41.  man's  Ch.  R.  97. 


324  KIGIITS   OF    SURETIES   BETWEEN    EACH    OTHER. 

for  the  dlscliai-f^e  of  an  attachment,  became  fixed  by  a  judgment 
against  his  principal  and  united  with  him  in  an  undertaking  for 
a  supei'sedeas,  and  an.  additional  surety  was  required  in  the  latter 
undertaking,  which  the  principal  with  the  assent  of  A  procured, 
and  B  became  such  surety,  it  was  held  that  no  right  of  contribu- 
tion arose  in  favor  of  A  against  B  in  case  A  had  to  pay  the 
debt.' 

§  231.  Surety  w^ho  becomes  principal  liable  for  •whole  amount 
paid  by  former  co  surety — ^Other  cases. — When  one  of  several 
sureties  afterwards  assumes  the  character  of  a  principal,  he  be- 
comes liable  to  the  other  sureties  as  principal  for  the  whole 
amount  paid  by  them.  Thus,  R,  having  contracted  to  erect  a 
building,  assigned  his  contract  to  C,  who  then  executed  to  him  a 
bond  with  M,  G  and  others  as  sureties,  conditioned  to  pay  E,  for 
stone  already  quarried  for  the  building.  Afterwards,  with  the 
knowledge  and  consent  of  the  sureties,  C  assigned  the  building 
contract  to  M,  with  a  condition  that  M  should  perform  all  the 
undertakings,  and  assume  all  risks  and  liabilities  imposed  upon  C 
as  assignee  of  the  contract.  M  accepted  the  assignment,  per- 
formed the  work  and  received  the  benefits  of  the  building  con- 
tract, but  failed  to  pay  for  the  stone.  G  having  been  compelled 
to  pay  the  sum  due  for  the  stone,  it  was  held  that  he  was  entitled 
to  recover  from  M,  as  principal,  the  full  amount  paid  by  him.'^  A 
being  desirous  of  borrowing  $50  at  a  bank,  applied  to  B  and  C 
to  be  his  sureties,  when  it  was  agreed  between  A  and  B  in  the 
presence  of  C,  that  $100  sliould  be  borrowed,  and  that  B  should 
have  half  the  sum.  A  note  for  $100  was  signed  by  the  three 
and  discounted  at  the  bank.  B  received  one-half  the  money,  and 
gave  A  his  note  for  it.  C  having  paid  the  note,  it  w^as  held  that 
he  had  a  right  to  recover  from  B,  as  principal,  the  whole  sum  so 
paid.^  A  promissory  note,  by  its  terms  payable  at  a  bank,  was 
signed  by  principal  and  surety,  with  the  expectation  that  it  would 
be  discounted  at  the  bank.  The  bank  refused  to  discount  the 
note,  n'nless  the  creditor  signed  the  note  on  its  face  as  a  maker. 
He  did  this  under  an  express  understanding  with  the  bank,  that 

^  Hartwell  v.  Smith,  15  Ohio  St.  200.  on  this  subject,  see,  also.  Rag-land  v. 

To  similar  effect,  see  Knox  v.  Val-  Milam,  10  Ala.  618. 

lanclingham,  13  Smedes  &  Mar.  (Miss.)  3jQj-,gg  j^,_  pi^z,  5  New  Hamp.  444; 

526.  to  similar  effect,  see  McPherson  t'.Tal- 

^Gray  v.  McDonald,  19  Wis.  213;  bott,  10  Gill  &  Johns.  (Md.)499. 


WHEN    rRINCIPAL    NOT   LIABLE    FOR   DEBT.  325 

he  was  not  tliereby  to  become  a  co-surety  with  the  other  parties, 
but  the  surety  of  all  of  them.  He  had  to  pay  the  note,  and  it  was 
held  that  he  could  recover  the  wliole  amount  from  the  surety.^ 
A  became  surety  for  B  and  C,  partners  in  trade,  upon  their  note 
payable  to  D  for  $2,000,  and  B  conveyed  to  A  certain  of  his  prop- 
erty for  indemnity.  Shortly  afterwards  B  bought  out  all  C's 
interest  in  the  business,  and  agreed  to  pay  all  the  partnership 
debts.  B  became  insolvent  and  did  not  pay  the  note,  and  judg- 
ment on  the  same  was  obtained  against  0,  who  paid  it,  and  A 
conveyed  to  0  $2,000  worth  of  the  property  conve^^ed  by  B  to 
him,  for  his  indemnity.  Held,  that  this  last  conveyance  might 
lawfully  be  made,  and  could  not  be  impeached  by  a  judgment 
creditor  of  B.^  The  owner  of  imported  goods  consigned  them  to 
a  commission  merchant  for  sale,  who  entered  them  at  the  custom 
house,  giving  his  bond  for  the  import  duties,  upon  which  bond 
the  owner  and  another  became  sureties,  and  the  consignee  im- 
mediately charged  the  owner  with  the  amount  of  the  duties,  and 
afterwards  failed  before  the  bond  became  due.  The  owner  paid 
the  money  due  on  the  bond,  and  it  was  held  he  could  recover  con- 
tribution from  the  other  surety  in  the  bond.  The  court  said  that 
on  account  of  the  nature  of  the  transaction,  the  debt  was  that  of 
the  consignee,  and  the  owner  and  the  other  surety  were  co-sureties.* 
Three  parties  contracted  for  the  purchase  of  land,  which  was  to  be 
conveyed  to  them  in  three  equal  shares.  They  gave  for  the  pur- 
chase money  three  joint  notes  for  equal  amounts,  signed  by  them 
all.  Held,  each  one  was  principal  for  one-third  of  each  note,  and 
co-surety  of  the  others  for  two-thirds  of  each,  and  their  rights 
and  liabilities  must  be  determined  on  that  basis.* 

§  232.  Surety  who  pays  debt  for  which  principal  or  another  - 
surety  is  not  liable,  cannot  have  contribution. — As  a  general 
rule,  one  surety  cannot  recover  contribution  from  another,  when 
the  debt  paid  by  the  surety  seeking  contribution  was  either  not 
binding  on  the  principal,  or  not  binding  on  the  other  surety. 
Thus  a  surety,  who,  knowing  all  the  facts,  pays  a  note  which  is 
void  for  usury,  cannot  recover  contribution  from  a  co-surety  on 
the  note.  A  surety  ordinarily  has  no  greater  rights  against  a  co- 
surety than  the  creditor  has  against  them  both,  and  in  such  case, 
the  creditor  has  no  lawful  claim  against  any  of  them.^     But  if 

'  Bowser  r.  Rendell,  Blind.  128.  *Goodall    v.    Wentwortli,    20    Me. 

2  Butler  r.  Birkey,  la  Ohio  St.  514.         322. 

3  Taylor  v.  Savage,  12  Mass.  98.  ^  Russell  v.  Failor,  1  Ohio  Sfc.  327. 


326  EIGHTS   OF    SUKETIES    BETWEEN    EACH    OTIIEK, 

the  surety  j)aying  a  note  tainted  "with  usury,  had  at  the  time  of 
such  payment  no  knowledge  of  the  usury,  he  may  recover  contri- 
bution from  a  co-surety.^  Where  one  surety  on  an  official  bond 
was  sued  at  law,  and  a  judgment  recovered  against  him  for  a  de- 
mand for  which  he  was  not  liable  as  surety,  it  was  held  he  could 
not  call  on  his  co-surety  for  contribution.  The  court  said  that 
the  surety  who  pays  "  takes  the  place  of  the  original  creditor, 
and  may  be  resisted  on  the  same  principles,  and  in  the  same 
way."  ^  Two  co-sureties  were  sued  jointly,  and  judgment  was 
rendered  in  favor  of  them  both.  The  creditor  appealed  to  the 
Su])reme  Court  from  the  judgment  in  favor  of  one  of  them,  and 
such  judgment  was  as  to  such  surety  reversed,  and  judgment  in 
the  Supreme  Court  was  rendered  against  such  surety  for  a  large 
amount,  which  he  paid.  Held,  he  could  not  recover  contribution 
from  the  other  surety.  The  judgment  which  as  to  him  remained 
in  force  in  the  court  below,  established  the  fact  that  be  was  not 
liable  to  the  creditor,  and  consequently  not  liable  for  contribu- 
tion.^ It  has  been  held  that  a  surety  who  pays  a  debt,  after  he 
might  have  defeated  it  by  pleading  the  statute  of  limitations,  can 
recover  contribution  from  a  co-surety  on  the  ground  that  the 
surety  who  paid  was  under  no  obligation,  legal  nor  equitable,  to 
defeat  a  just  claim  by  such  a  plea."  A  surety  paid  the  debt  of  a 
deceased  principal,  after  the  claim  against  his  estate  had  been 
barred  by  the  statute  of  non-claim,  and  it  was  held  he  was  enti- 
tled to  contribution  from  a  co-surety.  The  debt,  although  barred 
as  against  the  estate  of  the  principal,  was  not  barred  as  against 
the  surety  who  paid  it,  and  he  was  liable  for  it  when  he  made  the 
payment.^ 

§  233.  When  one  surety  entitled  to  benefit  of  indemnity  se- 
cured by  another  surety. — If  one  of  several  sureties  after  all  have 
signed,  and  before  the  debt  has  been  paid,  and  without  any  agree- 
ment to  that  effect  before  he  became  liable,  obtains  from  the  princi- 
pal anything  for  his  indemnitj^  such  indemnity  inures  to  the  ben- 
efit of  all  the  sureties,  and  the  surety  obtaining  it  immediately  be- 
comes the  trustee  of  it  for  the  benefit  of  all  the  sureties,  even 
though  he  obtained  it  by  his  own  exertions,  and  it  was  intended 

'  Warner  v.  Morrison,  3  Allen,  566.  '  Ledoux  r.  Durrive,  10  La.  An.  7. 

*  Lowndes  v.  Pinckney,  1  Richard-  ■•  Jones  r.  Blanton,  6  Ired.  Eq.  (Nor. 

son's  Eq.  (So.  Car.)  155,  per  Dunkin,  Car.)  115. 
C.  5  Evans  v.  Evans,  16  Ala.  465. 


INDEMNITY  TO  ONE  SURETY  INURES  TO  THE  BENEFIT  OF  ALL.    327 

for  his  sole  benefit.^  In  such  case,  as  all  the  sureties  are  alike  liable 
for  a  commou  principal,  it  will  be  presumed  that  the  surety  taking 
the  indemity,  takes  it  for  the  benefit  of  all  the  sureties,  or  if  he  does 
not,  then  his  taking  from  the  efiects  of  the  common  principal  for  his 
sole  benefit  is  a  fraud  on  the  other  sureties,  and  he  will  not  be  per- 
mitted to  have  the  benefit  of  the  indemnity  alone,  but  must  share  it 
with  the  others.  AVhere,  after  two  sureties  became  bound,  one  re- 
ceived indemnity  from  the  principal,  with  which  he  paid  more  than 
one-half  the  debt,  and  the  other  surety  paid  the  remainder,  it  was 
held  the  latter  might  recover  from  the  former  one-half  the  amount 
which  he  had  paid.*  It  has  also  been  held  that  the  surety  who 
has  partial  indemnity  in  his  hands,  and  pays  all  the  debt,  can  only 
recover  from  his  co-surety  one-half  the  sum  which  would  remain 
after  applying  the  amount  of  the  indemnity  on  the  sum  paid.' 
A  and  B  were  co-sureties  on  a  note  for  C,  and  B  was  indebted  to  C 
on  a  note  of  about  the  same  amount.  It  was  afterwards  agreed 
between  B  and  C  that  C  should  deliver  to  B  his  note,  and  that  B 
should  pay  that  amount  of  the  note  on  which  he  and  A  were 
sureties,  and  B's  note  was  delivered  to  him  by  C.  Afterwards  B 
and  C  made  a  difterent  agreement  with  reference  to  the  amount 
of  B's  note.  B  had  to  pay  the  note  on  which  he  and  A  were 
sureties,  and  sued  A  for  contribution.  Held,  that  when  B  re- 
ceived his  own  note  from  C,  as  above,  he  received  it  for  the  bene- 
fit of  A  as  well  as  himself,  and  could  not  divert  it  from  the  pur- 
pose for  which  he  received  it,  and  he  could  only  recover  from  A 
ii  pro  rata  share  after  deducting  the  amount  of  the  note.*  "Where 
a  surety  after  he  becomes  bound  and  before  he  is  damnified,  takes 
a  mortgage  on  property  of  the  principal  to  indemnify  himself,  if 

'  SeiberttJ.  Thompson,  8  Kansas,  65;  Adams,  1   Freeman's  Ch.   R.   (Miss.) 

Steele  v.  Mealing,  24  Ala.  285;  Miller  225;  Cooper  v.  Martin,  k  Dana  (Ky.) 

v.  Sawyer,  30  Vt.412;  McLewist;.  Fur-  23;  Hall  v.  Cusliman,  16  Wew  Hamp. 

gerson  5  The  Reporter,  330;  McCune  462. 

V.  Belt,  45  Mo.  174;  Hartwell  v.  Whit-  *  Agnew  v.  Bell,  4  Watts.  (Pa.)  31. 

man,  36  Ala.  712;  Smith  v.  Conrad,  15  *  Currier  v.  Fellows,  27  New  Hamp. 

La.  An.  579;  Hinsdill  v.  Murray,  6  Vt.  366. 

136;  Leary  v.  Cheshire,  3  Jones,  Eq.  *Hall    v.    Robinson,    8    Ired.  Law 

(Nor.  Car.)  170;  Low  r.  Smart,  5  New  (Nor.  Car.)  56.     Holding  that  an  in- 

Hamp.  353;  Gregory  v.  Murrell,  2  Ired.  demnity  placed  in  the  hands  of  one 

Eq.  (Nor.  Car.)  233;  Hall  v.  Robinson,  surety  for  the  benefit  of  all,  cannot  be 

8  Ired.  Law.  (Nor.  Car.)  56;  Fagan  i'.  diverted  from  that  purpose;   Hinsdill 

.Tacocks,  4  Dev.  Law  (Nor.  Car.)  263.  v.  Murray,  6  Vt.  136;  Hayes  v.  Davis, 

To  a  contrary  eftect,  see  Thompson  v.  18  New  Hamp.  600. 


328  EIGHTS   OF    SURETIES    BETWEEN    EACH    OTHER. 

there  are  several  demands  on  which  he  is  surety  witli  different  co- 
sureties, and  the  security  is  taken  generally  for  his  indemnity,  it 
has  heen  held  that  the  indemnity  shall  be  apportioned  among  all 
the  demands  ^r6>  rata.^  Where  a  surety  took  from  the  principal 
a  mortgage  to  secure  a  debt  due  from  the  principal  to  such  surety 
and  also  to  indemnify  such  surety  against  loss  as  such,  and  there 
was  no  provision  in  the  mortgage  as  to  which  debt  should  be 
paid  first,  it  was  held  that  the  proceeds  of  the  mortgage  should  be 
applied  j!;rc  rata  to  the  payment  of  the  debt  due  from  the  princi- 
pal to  the  surety,  and  to  the  payment  of  the  debts  for  which  the 
surety  was  liable  as  such  with  a  co-surety,^  But  in  a  similar  case 
it  was  held,  that  the  surety  who  took  the  indemnity  might  first 
pay  from  the  proceeds  the  debt  due  him  individually/  One  of 
two  sureties  paid  the  debt  and  took  an  assignment  of  a  mortgage 
given  by  the  principal  to  secure  the  debt.  He  then  foreclosed 
the  mortgage  (after  first  requesting  his  co-surety  to  pay  one-half 
the  debt  and  take  an  assignment  of  the  mortgage  jointly  with 
him),  and  bid  in  the  property  for  a  nominal  sum.  In  a  suit  by 
him  against  his  co-surety  for  contribution,  it  was  held  that  he  was 
a  trustee  of  the  mortgaged  premises  for  his  co-surety,  and  bound 
to  account  for  their  value  at  the  time  they  were  sold,  and  not  at  a 
subsequent  time,  and  was  entitled  to  commissions  for  his 
trouble.* 

§  234.  Instances  of  indemnity  taken  by  one  surety  inuring 
to  the  benefit  of  all  the  sureties.— To  prevent  circuity  of  action 
and  attain  the  ends  of  natural  justice,  equity  will  completely  in- 
demnify one  of  the  sureties  in  a  bond,  by  means  of  a  lien  on  the 
property  of  the  principal,  existing  in  favor  of  another  surety  for 
the  indemnity  of  such  other  surety,  and  for  that  purpose  the  court 
will  coranel  the  creditor  (all  the  parties  being  before  it,)  tc^  resort 
to  that  property  in  the  first  place  for  the  satisfaction  of  the  debt.* 
Two  sureties  having  become  bound,  the  principal  placed  an  in- 
demnity in  the  hands  of  one  of  them,  and  he  assumed  to  pay  the 
debt,  and  after  having  paid  it  in  part,  procured  a  third  person  to 
purchase  the  debt  for  his  benefit.  The  assignee  sued  the  debt  in 
his  own  name,  and  recovered  a  judgment  against  both  sureties, 

^  Brown  V.  Ray,  18  New  Hamp.  102.  ^Living-ston  v.   Van  Rensselaer,    6 

"  Moore  v.  Moberly,  7  B.  Mon.  (Ky.)  Wend.  63. 

299.  ^  West  V.  Belches,  5  Munford  (Va.) 

» Brown  v.  Ray,  18  New  Hamp.  102.  187. 


INDEI\rNITY   TO    ONE    SUEETY   INURES    TO    BENEFIT    OF   AiL.     329 

and  had  an  execution  issued  and  levied  on  the  property  of  the 
surety  who  had  no  indemnity.  Held,  equity  would  interfere  and 
compel  the  payment  of  the  debt  by  the  indemnified  surety,  and 
restrain  its  collection  from  the  other  surety.^  A  principal  gave 
a  surety  who  was  liable  with  a  co-surety,  a  mortgage  for  liis  in- 
demnity, the  mortgage  stating  the  debts  it  was  given  to  secure. 
The  mortgagee  afterwards  had  to  pay  as  surety  for  his  principal, 
a  certain  sum  for  which  he  became  liable  after  the  making  of  the 
mortgage.  Held,  the  mortgagee  must  account  to  his  co-surety 
for  the  mortgaged  property,  and  could  not  retain  anything  from 
the  proceeds  thereof  to  indemnify  himself  from  loss  on  account  of 
the  debt  for  which  he  subsequently  became  surety.^  In  order  to 
indemnify  his  several  sureties,  a  principal  assigned  to  a  trustee  a 
claim  to  be  collected  for  their  benefit.  Before  this  claim  was 
collected,  the  sureties  were  each  compelled  to  pay  an  equal  por- 
tion of  the  debt.  One  of  the  sureties,  A,  obtained  judgment 
against  the  principal  for  the  sum  paid  by  him,  on  which  the  prin- 
cipal was  arrested,  and  gave  a  prison  bounds  bond,  with  sureties, 
which  he  forfeited,  and  the  sureties  thereon  became  liable.  The 
assignee  afterwards  collected  the  claim  for  the  benefit  of  the  sure- 
ties. Held,  that  neither  A  nor  the  sureties  in  the  prison  bounds 
bond  could  come  on  the  fund  in  the  hands  of  the  trustee  till  all 
the  other  sureties  had  been  fully  indemnified.  A,  having  ob- 
tained another  security,  had  two  funds  to  look  to,  while  the  other 
sureties  only  had  one;  and  he  must  first  exhaust  the  one  in  which 
they  were  not  interested.  The  sureties  in  the  prison  bounds  bond 
were  not  in  as  good  a  position  as  A,  because  the  effect  of  their  act 
was  to  defeat  the  recovery  of  indemnity  from  the  principal.^ 
Complainants  and  defendants  were  bound  as  sureties  for  one  S, 
to  whom  the  defendant  was  indebted,  and  judgment  w^as  recov- 
ered against  all  the  sureties,  which  they  paid  in  equal  propor- 
tions. S,  as  indemnity  to  the  defendant  for  the  sum  paid  by  him, 
caused  the  notes  which  he  held  against  the  defendant  to  be  sur- 
rendered to  him.  Held,  the  complainants  were  entitled  to  con- 
tribution from  the  defendant,  and  that  the  amount  of  the  notes 
so  surrendered  to  the  defendant  should  be  accounted  for  by  him 
to  his  co-sureties.*     Two  co-sureties  were  ofiered  security  by  their 

>  Silvey  v.  Dowell,  53  III.  260.  ^  Givens  v.  Nelson,  10  Leigh  (Va.) 

« Steele  v.  Mealing,  24  Ala.  285.  382. 

*Tyus  V.  DeJarnette,  26  Ala.  280. 


330  EIGHTS   OF    SURETIES    BETWEEN   EACH    OTHER. 

princi])al  upon  condition  that  tliey  should  execute  a  release  to 
him,  which  offer  was  accej)ted  bj  one  and  rejected  by  the  other. 
The  party  accepting  the  security  realized  from  it  more  than 
enougli  to  pay  half  the  common  debt,  and  applied  the  proceeds 
to  the  payment  thereof.  The  surety  refusing  to  accept  the  secu- 
rity, was  forced  to  pay  the  portion  of  the  debt  still  due,  and  sued 
his  co-surety  for  contribution.  Held,  he  was  not  entitled  to  re- 
cover. The  court  said  contribution  would  not  be  enforced  when 
it  would  be  inequitable,  and  it  would  be  inequitable  to  enforce  it 
in  this  case.' 

§  235.  If  surety  surrender  lien  for  his  indemnity  on  property 
of  principal,  he  discharges  co-surety  from  contribution. — If 
after  sev^eral  sureties  become  liable,  and  before  the  debt  is  paid, 
one  of  the  sureties  not  having  stipulated  for  the  same  before  he 
became  bound,  obtains  a  mortgage  or  other  lien  on  property  of 
the  principal  for  his  indemnity,  such  lien  inures  to  the  benefit  of 
his  co-sureties,  and  if  it  is  afterwards  lost  by  his  positive  act,  his 
co-sureties  will  be  discharged  from  liability  to  contribute  to  him 
to  the  extent  that  they  are  injured;  and  a  defense  founded  on 
such  facts  may  be  made  both  at  law  and  in  equity.^  In  a  case  in 
which  it  was  held  that  a  surety  cannot  recover  contribution  from 
a  co-surety,  whose  right  to  subrogation  to  a  judgment  against  the 
principal  he  has  rendered  unavailable,  the  court  said:  "A  co- 
surety has,  of  course,  the  same  responsibility  for  keeping  alive 
securities  in  favor  of  his  co-surety,  from  whom  he  claims  contri- 
bution as  a  creditor  has  in  behalf  of  sureties."  ^  A  and  B  were 
co-sureties  on  the  bond  of  an  administrator,  and  being  sued  on  the 
same  by  the  next  of  kin,  compromised  the  suit  by  each  paying 
$1,100,  under  the  advice  of  counsel,  from  an  honest  belief  that 
both  were  liable  in  a  larger  amount  on  account  of  a  devastavit  and 
the  insolvency  of  the  principal.  It  was  afterwards  discovered  that 
B,  who  had  administered  on  the  estate  of  the  principal,  had,  by  a 
misapprehension  of  law,  but  honestly  and  under  advice  of  coun- 
sel, given  up  assets  of  their  principal  for  tlie  payment  of  another 

'  White  V.  Banks,  21  Ala  705.  he  does  not  thereby  obtain  any  right 

*  PauHn  V.  Kaighn,  5  Dutcher  (N.  to  a  collateral  security  for  the   same 

J.)  4S0,  overruling  Paulin  v.  Kaighn,  debt  put  up  by  another  surety,  see 

3  Dutcher  (N.  J.)  503;  Ramsey  v.  Lew-  Bowditch  r.  Green,  3  Met.  (Mass.)  360. 
is,  30  Barb    (N.  Y)  403;  Taylor   v.  »  pieiji^ig  j;.  Waterhouse,  8  Jones  & 

MoiTison,  26  Ala.  728.  Holding  that  Spencer  (N.  Y.)  424,  per  Sedgwich,  J. 
where  the  debt  is  paid  by  one  surety, 


LOSS  OF  SECUEITY  BY  SURETY  BAES  CLAIM  TO  CONTKIBUTION.    331 

claim,  which,  if  they  liad  been  held  by  him,  would  have  saved 
them  both  from  loss  on  account  of  their  surety- ship:  Held,  A 
could  not  sustain  a  bill  to  throw  the  whole  loss  on  B,  it  not  ap- 
pearing that  B  had  concealed  the  fact  of  having  parted  with  the 
assets,  or  had  been  guilty  of  any  fraud  or  imposition.^  A  surety 
does  not  release  his  co-surety  from  contribution,  by  the  fact  that 
after  he  lias  paid  the  debt,  he  surrenders  to  the  principal 
certain  notes  which  the  principal  had  deposited  with  him  to  se- 
cure another  debt,  and  which  it  was  expressly  agreed  should  be 
delivered  up  as  soon  as  the  latter  debt  was  paid.  In  such  case  no 
lien  in  which  the  co-surety  is  interested  is  lost.^  After  A  and  B' 
became  co-sureties,  the  principal  put  into  A's  hands,  for  his  in- 
demnity, certain  notes  of  a  third  person.  A  inquired  about  the 
notes,  and  was  informed  that  they  would  soon  be  paid,  and  they 
were  soon  after  paid;  but  before  that  time  A  returned  them  to 
the  principal  upon  the  principal  giving  him  a  satisfactory  bond 
of  indemnity.  A  having  paid  the  debt,  sued  B  for  contribu- 
tion :  Held,  that  A  was  the  trustee  of  the  notes  for  B  as  well  as 
himself;  but  as  there  was  no  evidence  that  the  bond  was  not  as 
good  as  the  notes,  nor  that  A  had  failed  to  act  with  ordinary  pru- 
dence, B  could  not  complain,  and  was  not  discharged  from  con- 
tribution.' 

§  236.  If  surety  negligently  lose  indemnity,  co-surety  released 
from  contribution. — The  surety  who  holds  a  lien  on  property  of 
the  principal  for  the  payment  of  the  debt,  concerning  which  lien 
he  is  chargeable  as  trustee  for  his  co-sureties  as  well  as  himself, 
must  be  active  in  preserving  the  lien  to  the  same  extent  that  any 
other  trustee  under  similar  circumstances  would  be  obliged  to  be 
diligent,  and  if  through  his  negligence  the  lien  is  rendered  una- 
vailable for  the  payment  of  the  debt,  his  co-sureties  will  be  re- 
leased  from  contribution  to  him,  to  the  extent  that  they  are  in- 

'  Brandon  v.   Medley,   1  Jones  Eq.  that  a  surety  may  give  to  his  co-sure- 

(Nor  Car.)  813.  *  ties  a  mortgage  to  secure  them  against 

*  Higgins  V.  Morrison's  Exr.  4  Da-  his  liability  for  contribution,  see  Steele 

na  (Ky.)  100.  v.  Faber,  37  Mo.  71.    Holding  that  if 

^  Carpenter  v.  Kelly,   9  Ohio,   106.  money  is  deposited  with  a  trustee  by 

Holding  that  the  surety  who  obtains  one  surety  for    the  indemnity  of  his 

a  mortgage  for  the  benefit  of  the  oth-  co-sureties,  if  such  co-sureties  consent 

er  sureties  will  be    allowed    for  his  thereto,  the  money  must  be  returned 

trouble  and    expenses,    see    Comegys  to  the  owner,  see  Skidmore  v.  Taylor, 

V.  State  Bank,  6  Ind.  357.    Holding  29Cal.  619. 


332  EIGHTS    OF    SURETIES    BETWEEN    EACH    OTHER. 

jiircd  thereby.  Negligence  under  such  circumstances  is  equiva- 
lent to  a  positive  act  producing  the  same  result.'  Thus,  where 
a  surety  lield  a  chattel  mortgage  for  his  indemnity,  on  slaves  of 
the  principal,  and  after  the  mortgage  might  have  been  foreclosed, 
he  sutlered  some  of  the  slaves  to  be  sold  by  the  sheriff  for  another 
debt  of  the  principal,  and  lost  as  a  security,  it  was  held  that  he 
must  account  to  his  co-surety,  who  had  paid  the  debt  for  the  slaves 
so  lost  by  his  negligence."  So  where  property  was  conveyed  by 
the  principal  for  the  indemnity  of  one  of  two  sureties,  and  it  was 
sold  for  that  purpose,  but  through  the  negligence  of  the  surety 
for  whose  indemnity  it  was  conveyed,  the  purchase  money  was 
not  collected  and  was  lost,  it  was  held  he  could  not  recover  con- 
tribution from  his  co-surety.^  The  surety  v.'ho  receives  from  his 
principal  a  chattel  mortgage  of  slaves  and  other  property,  must 
account  to  his  co-surety  for  such  of  the  property  as  is  wasted  in 
consequence  of  his  laches  and  for  the  value  of  the  hire  of  the 
slaves."  A  surety  is  not  however  accountable  to  his  co-surety  for 
a  loss  arising  by  reason  of  his  failure  to  record  a  chattel  mortgage 
given  by  the  principal  for  his  indemnity,  when  he  agreed  with  the 
principal  at  the  time  he  took  the  mortgage,  that  he  would  not 
record  it.  In  such  case  he  is  bound  by  the  agreement,  and  the  co- 
surety has  no  greater  rights  than  he  has.^ 

§  237.  Surety  ■who  obtains  indemnity  after  all  the  sureties 
have  paid  an  equal  amount,  is  not  obliged  to  share  it  "with  the 
others. — After  the  debt  of  the  principal  is  paid  by  several  sure- 
ties, in  equal  proportions,  the  equities  between  them  as  co-sure- 
ties cease,  and  each  becomes  an  independent  creditor  of  the  prin- 
cipal for  the  amount  paid  by  him.  In  such  case,  if  one  after- 
wards receives  indemnity  from  the  jDrincipal,  the  others  are  enti- 
tled to  no  part  thereof."  So,  where  one  of  two  sureties  paid  the 
entire  debt,  and  the  principal  afterwards  paid  him  for  his  sole 
benefit,  one-half  the  amount,  it  was  held  that  he  was  afterwards 
entitled  to  recover  from  his  co-surety  the  other  half  of  the  debt 
he  had  paid  for  the  principaL^  One  of  two  sureties,  with  the 
consent  of  the  other,  gave  up  a  security  which  he  had  taken  for 

'  Schmidt  v.  Coulter,  6  Minn.  492.  similar  effect,  see  Pool  v.  Williams,  8 

■■'  Steele  v.  Mealing,  24  Ala.  285.  Ired.  Law  (Nor.  Car.)  2S6. 

2  Chilton  V.  Chapman,  13  Mo.  470.  ^  Messer  v.  Swan,  4  New  Hamp.  481; 

"Goodloe  V.  Clay,  6  B  Mon. (Ky.)  23G.  Harrison  v.  Phillips,  46  Mo.  520. 

"White  V.  Carlton,  52  Ind.  371.    To  '  Gould  r.  Fuller,  18  Me.  364. 


SUIT  FOR  CONTRIBUTION  BY  SURETY  HOLDING  INDEMNITY.       333 

the  benefit  of  both,  on  receiving  a  written  promise  of  the  princi- 
pal that  lie  would  pay  the  debt  or  return  the  security.  This 
promise  was  not  performed,  and  the  sureties  paid  the  debt  of 
$1,080,  by  giving  their  joint  and  several  notes  therefor,  j)ayable 
on  time.  Before  the  note  was  paid  or  payable,  the  surety  to 
whom  the  promise  was  made,  sued  the  principal  for  breach  there- 
of, and  in  consequence  received  from  him  $600.  Held,  he  was 
liable  for  one-half  of  this  amount  to  his  co-surety.^  In  this  case, 
although  the  money  was  received  after  the  debt  was  paid,  the 
promise  was  made  before  that  time.  A  was  collector  of  state 
revenue,  and  gave  a  bond,  with  B  and  C  as  sureties.  He  collect- 
ed certain  money  of  the  state,  which  he  deposited  in  his  own 
name  in  a  private  »bank  instead  of  in  the  state  bank,  where  it 
should  have  been  deposited.  A  became  a  defaulter  for  a  much 
larger  sum  and  B  and  C  each  paid  one-half  of  the  defalcation. 
B  then  sued  A  for  indemnity,  and  garnished  the  private  bank, 
and  by  legal  proceedings  got  the  money  there  deposited.  Held, 
C  was  entitled  to  one-half  the  money  thus  obtained  by  B,  on  the 
ground  that  the  money  belonged  to  the  state,  and  not  to  A,  and 
each  surety,  when  he  paid,  was  entitled  to  subrogation  to  the 
claim  of  the  state  against  A,  and  consequently  each  was  entitled 
to  one-half  the  mone3^^ 

§  238.  "When  suit  for  contribution  can  be  brought  by  surety 
holding  indemnity. — Although  there  is  a  conflict  of  authority  on 
the  subject,  the  weight  of  authority  seems  to  be  that  the  fact 
that  the  surety  who  pays  the  debt,  has  in  his  hands  an  indemnity 
other  than  money,  and  more  or  less  valuable,  will  not  prevent 
liim  from  suing  a  co-surety  for  contribution,  and  recovering  such 
amount  as  he  is  then  entitled  to,  irrespective  of  the  sum  that 
may  afterwards  be  realized  from  the  indemnity;  but  he  will  be 
accountable  to  the  co-surety  for  a  proper  proportion  of  whatever 
sum  he  may  afterwards  realize  from  the  indemnity.^  A  surety 
who  had  some  indemnity  in  his  hands,  paid  the  debt  and  sued 
liis  co-surety  for  contribution.  Held,  the  amount  he  had  received 
from  the  indemnity  should  be  deducted  from  the  amount  he  had 
paid,  and  a  judgment  for  one-half  the  remainder  should  be  ren- 
dered against  the  co-surety.     If  the  party  holding  the  indemnity 

'  Doolittle  V.  Dwight,  2  Met.  (Mass.)  ^  Johnson's  admrs.  v.  Vaughn,  65  111. 

561.  425. 

=  Harrison  v.  Phillips,  46  Mo.  520. 


334  RIGHTS    OF    SURETIES    BETWEEN    EACH    OTHER. 

afterwards  realizes  anything  from  it,  he  must  acconnt  to  his  co- 
surety for  one-half  of  it,  but  the  fact  that  he  had  the  indemnity 
would  not  prevent  him  from  recovering.*  A  principal  gave  his 
sureties  a  mortgage  on  slaves  for  their  indemnity,  and  judgment 
was  afterwards  recovered  against  the  principal  and  sureties,  which 
one  of  the  sureties  paid.  The  sureties  filed  a  bill  to  foreclose 
the  mortgage  which  was  pending.  The  surety  who  paid  the 
debt  brought  suit  against  the  jjrincipal  to  recover  the  amount 
paid  by  him,  and  the  suit  was  pending.  The  surety  who  paid 
the  debt,  then  sued  a  co-surety  for  contribution,  and  it  was  held 
that,  notwithstanding  the  pendency  of  the  other  two  suits,  he 
was  entitled  to  recover.^  Where  a  surety  held  for  his  indem- 
nity certain  bonds  of  third  persons,  and  judgment  had  been 
recovered  against  him,  the  principal,  and  a  co-surety  of  which  he 
had  obtained  an  equitable  assignment,  it  was  held  that  equity 
would  not  permit  him  to  enforce  the  collection  of  one-half  the 
judgment  from  the  co-surety,  unless  he  showed  that  he  could  not 
have  collected  the  bonds  by  reasonable  diligence.^  It  has  been 
held  that  a  surety  who  is  fully  indemnified,  cannot  recover  con- 
tribution from  his  co-surety.*  It  has  also  been  held  that  the 
surety  who  has  partial  indemnity  in  his  hands,  in  the  shape  of 
property  of  the  principal,  can  only  recover  from  a  co-surety  one- 
half  the  amount  paid  by  him  after  deducting  therefrom  the  value 
of  the  property.  ^ 

§  239.  Surety  may  before  paying  debt,  file  bill  to  compel  co- 
surety to  contribute  and  to  restrain  him  from  transferring  his 
property. — The  remedy  between  co-sureties  is  usually  sought  after 
the  debt  has  been  paid  by  some  of  them,  but  a  surety  may  before 
he  has  paid  the  debt,  file  a  bill  against  his  co-surety  to  compel 
him  to  contribute  to  its  payment."  So  where  judgment  was 
recovered  against  a  principal  and  two  sureties,  and  the  principal 
was  insolvent,  and  one  of  the  sureties  having  some  real  estate  in 
his  wife's  name  was  about  to  sell  it  to  an  innocent  purchaser,  it 
was  held  that  the  other  surety  before  pajnng  the  debt  might  by 
suit  in  chancery,  restrain  him  from  selling  the  property  till  the 

'  Bachelder  v.  Fiske,   17  Mass.  464.  *  Morris  n  v.  Taylor,  21  Ala.  779. 

''Anthony  v.   PercifuU,    8  Ark.   (3  ^  Currier  v.  Fellows,  27  New  Hamp. 

Engr.)  494.  366. 

'  Kerns  v.  Chambers,   3  Ired.  Eq.  ^  McKenna  v.  George,  2  Richardson, 

(Nor.  Car.)  576.  Eq.  (So.  Car.)  15. 


CONTRIBUTION    AS    AFFECTED    BY    BANKRUPTCY.  335 

debt  for  which  tliey  were  liable  as  sureties  was  paid.  The  court 
said:  "  While  at  law,  the  surety  has  no  remedy  until  he  has  paid 
the  debt,  equity  with  a  view  of  placing  the  performance  of  the 
duty  where  it  primarily  belongs,  will  interpose  at  the  instance  of 
the  surety  as  soon  as  the  debt  becomes  due  to  compel  its  payment 
by  the  principal.  *  A  court  of  equity,  to  prevent  a  multiplicity 
of  suits,  in  order  to  do  right  and  distribute  justice,  will,  in  the 
first  instance,  impose  the  discharge  of  the  duty  or  performance  of 
the  obligation  upon  the  party  primarily  and  ultimately  bound. 
Instead,  therefore,  of  requiring  the  surety  to  pay,  and  then  reim- 
bursing him  by  decree  against  the  principal,  it  permits  the  surety 
at  once  to  resort  to  the  court  to  compel  the  principal  to  discharge 
his  obligation.  Although  the  question  is  new  and  without  precedent 
in  the  books,  so  ftir  as  we  have  been  able  to  see,  this  equity  is 
quite  as  strong  in  favor  of  a  surety  (where  the  principal  is  insol- 
vent) against  his  co-surety.  It  is  well  supported  by  authority, 
and  thoroughly  approved,  by  the  reason  that,  if  the  principal  has 
made  or  is  about  to  make  secret  or  fraudulent  dispositions  of  his 
property,  so  as  to  throw  the  debt  upon  his  surety,  the  latter  may 
have  ample  remedy.  If  the  principal  is  insolvent,  and  therefore 
the  debt  rests  as  a  common  and  equal  burden  upon  tlie  sureties, 
do  not  the  same  considerations  appeal  with  equal  force  to  the 
chancellor,  that  he  may  see  to  it,  that  one  of  them  sliall  not,  by 
secret  or  fraudulent  contrivances  or  conveyances  of  property,  fost- 
en  the  whole  of  it  upon  the  other  ?  We  think  that  the  principle 
may  well  have  this  extended  application."  *  After  a  judgment 
creditor  had  filed  a  creditor's  bill  against  the  principal  and  others, 
to  subject  money  or  assets  fraudulently  assigned  by  the  principal 
to  such  others,  a  surety  for  the  debt  paid  it,  upon  the  express 
condition  that  he  should  have  the  right  to  prosecute  the  creditor's 
bill.  Held,  that  paying  the  judgment,  did  not,  under  the  circum- 
stances, extinguish  it,  and  the  surety  had  a  right  to  prosecute  the 
creditor's  bill." 

§  24:0.  Discharge  of  surety  in  bankruptcy  does  not  release  him 
from  contribution  to  co-surety,  •who  pays  subsequently. — The  dis- 
charge of  a  surety  in  bankruptcy  does  not  usually  release  him 
from  a  claim  to  contribution  by  a  co-surety  who  afterwards  pays 
the  debt.  In  a  case  in  which  this  was  held,  the  court  said:  "There 

>  Bowen  v.   Htskins,   45  Miss.  183,  «  Hams  v.  Carlisle,  12  Ohio,  169. 

per  Sim  rail,  J. 


33G  EIGHTS   OF    SUKETIES   BETWEEN   EACH    OTHER. 

was  here  no  debt  capable  of  estimation  in  order  to  its  being 
proved,  because  two  contingencies  were  to  be  taken  into  consid- 
eration; first,  whether  the  original  debtor  would  not  himself  pay 
the  debt,  and  secondly,  whether  this  defendant  would  ever  be  called 
upon  to  pay  it,  1  do  not  see  how  it  is  possible  to  say  that  any 
such  debt  existed  between  these  parties  as  could  have  been  proved 
under  the  commisson."  ^ 

§  241.  "When  surety  -who  is  discharged  from  liability  to  creditor 
liable  to  contribute  to  co-surety,  who  subsequently  pays. — It  has 
been  held  that  tlie  release  of  one  surety,  without  the  consent  of 
his  co-surety,  from  liability  to  the  creditor,  will  not  discharge  him 
from  liability  to  contribute  to  the  co-surety,  who  is  subsequently 
compelled  to  pay  the  debt."  But  where  suit  was  brought  against 
one  of  two  sureties,  and  judgment  recovered  which  such  surety 
paid,  and  before  the  judgment  was  rendered,  the  other  surety  who 
was  not  sued,  became  released  by  the  statute  of  limitations,  it  was 
held  that  the  latter  was  thereby  released  from  liability  to  contribu- 
tion. In  this  case  the  surety  who  was  sued  had  a  statutory  right 
to  liave  compelled  a  suit  to  be  brought  against  the  other  surety.' 

§  242.  Rights  of  bail,  -who  pay  the  debt,  against  the  principal 
and  sureties  for  the  debt. — If  one  of  two  sureties  in  a  bail  bond 
in  a  civil  action,  voluntarily  pays  the  judgment  against  the  prin- 
cipal before  the  bail  are  fixed,  he  cannot  recover  contribution 
from  his  co-surety  in  the  bond:  The  latter  had  a  right  to  relieve 
himself  from  liability  by  surrendering  the  body  of  the  principal, 
and  he  could  not  be  deprived  of  this  right  by  a  voluntary  pay- 
ment by  the  other  surety.^  An  attachment  of  B's  property  was 
dissolved  upon  a  bond  being  giv^en  by  him,  with  C  and  D  as 
sureties.  The  creditor  A,  recovered  a  judgment  in  the  attach- 
ment suit  against  B,  which  was  not  paid,  and  then  brought  suit 
on  the  bond  and  recovered  a  judgment  therein  against  B,  C  and 
D,  and  arrested  B  on  the  execution  issued  on  this  judgment.  B 
applied  to  take  the  oath  for  the  relief  of  poor  debtors,  and  en- 

^  Clements  v.  Langley,  2  Nevile  &  New  York,  59;  Miller  v.  Gillespie,  59 

Man.  269,  per  Denman,  C.  J. ;  Goss  v.  Mo.  220.    See,  also,  on  this  subject, 

Gibson,  8  Humph.  (Tenn.)  197;  Eber-  Hays  v.  Ford,  55  Ind.  52. 

hardt  v.  Wood,  2  Tenn.  Ch.  R.  (Coop-  ^  Hill  v.  Morse,  61  Me.  541;  Clapp  v. 

er,)  488;  Dunn  v.  Sparks,  1  Ind.  397;  Rice,  15  Gray,  557. 

Swain  v.  Barber,  29  Vt.  292;  Keer  v.  ^gij^elton  v.  Farmer,  9  Bush.  (Ky.) 

Clark,  11  Humph.  (Tenn.)  77.   To  con-  314. 

trary  effect,  see  Tobias  v.  Rogers,  13  *  Skillin  v.  Merrill,  16  Mass.  40. 


WHETHER   PAYMENT    EXTINGUISHES   JUDGMENT.       BAIL.        66  i 

tered  into  the  statutory  recognizance  with  E  as  surety,  to  deliver 
himself  up  for  examination.  *  After  a  breach  of  the  condition 
of  the  recognizance,  C  and  D  paid  the  amount  of  the  judgment 
to  which  they  were  parties  to  A,  and  brought  suit  in  his  name 
for  their  benefit,  on  the  recognizance  against  E.  Held,  they 
could  not  recover.  Payment  of  the  judgment  by  them  discharg- 
ed it  and  released  E.  There  was  no  privity  between  C  and  D 
and  E.  They  were  sureties  for  A  under  different  contracts. 
They  were  all  principles  as  to  E;  nor  did  the  doctrine  of  subroga- 
tion apply.'  Principal  and  surety  executed  a  bond,  but  the  fact 
of  suretyship  did  not  appear  from  it.  Suit  was  commenced  on 
the  bond,  and  the  principal  was  arrested  and  gave  bail,  who  at 
that  time  had  no  knowledge  of  the  suretyship.  The  surety  was 
not  served,  and  no  judgment  was  rendered  against  him.  The 
bail  was  obliged  to  pay  the  debt,  and  sued  the  surety  for  in- 
demnity. Held,  he  was  not  entitled  to  recover."  A  and  B  owed 
a  note  upon  which  suit  was  commenced,  and  A  was  arrested,  and 
C  became  his  bail.  Judgment  was  recovered  against  A  and  B, 
which  C,  as  the  bail  of  A,  was  obliged  to  pay.  Held,  that  C  was 
not  entitled  to  recover  indemnity  from  B,  as  there  was  no  privity 
between  them.  It  was  the  case  of  a  person  paying  the  debt  of 
anotlier  without  any  request  express  or  implied.^ 

§  243.  When  surety  -who  pays  judgment  may  have  execution 
thereon  against  co-surety. — Judgment  was  recovered  against  A, 
B,  C  and  D,  who  were  co-sureties.  A,  B  and  C  paid  the  judg- 
ment, and  had  execution  issued  thereon,  and  placed  in  the  sher- 
iff's hands,  with  directions  to  make  one-fourth  of  it  from  the 
property  of  D.  No  property  of  D  was  found,  and  A,  B  and  C 
filed  a  creditor's  bill  against  him  to  reach  his  effects.  Held,  tlie 
sureties  who  paid  were  entitled  to  subrogation  to  the  creditor's 
rights  in  the  judgment,  so  as  to  proceed  against  their  co-surety 
D,  and  tliat  a  court  of  equity  would  prevent  tlie  extinction  of 
a  judgment,  so  as  to  afford  a  surety  a  remedy  against  a  co-surety.* 
Although  this  is  the  approved  doctrine,  it  has  been  held  that  the 
surety  who  pays  a  judgment,  thereby  extinguishes  it,  and  that  he 
cannot  afterwards  have  an  execution  thereon  against  his  co-surety.* 

»  Holmes  v.  Day,  108  Mass.  563.  "Cuyler  v.  Enswortli,  6  Paige  Ch. 

2  Smith  V.  Bing.  3  Ohio,  33.  R.  32. 

^Osbqrn  v.  Cunningham,  4  Dev.  &  ^McDanielf.  Lee,  37  Mo.  204;  Hull 

Bat.  Law  (Nor.  Car.)  423.  v.  Sherwood,  59  Mo.  -172. 
22 


338  EIGHTS    OF    SURETIES   BETWEEN    EACH    OTIIEE. 

§  244.  How  liability  to  contribution  affected  by  giving  of 
time  to  one  of  several  co-sureties. — If  one  of  two  CO-SUreties 
consents  to  tlie  giving  of  time  to  the  principal,  and  the  other  does 
not,  and  the  one  who  so  consents  afterwards  has  tlie  debt  to  pay, 
he  cannot  recover  contribution  from  the  surety,  who  did  not 
consent  to  the  extension.  The  latter  was  discharged  from  his 
obligation  to  the  creditor,  and  likewise  from  contribution,  by  the 
extension.  There  is  no  stronger  obligation  between  co-sureties 
that  they  sliall  contribute,  than  there  is  that  they  shall  pay  the 
creditor,  and  a  giving  of  time  releases  them  from  the  creditor, 
and  will  under  the  foregoing  circumstances  release  them  from  each 
other.*  A  was  creditor,  B  principal,  and  C,  T>  and  E  sureties,  on 
a  bond,  which  became  due,  and  0  gave  his  obligation  to  A,  pay- 
able by  instalments,  in  payment  of  the  debt.  Subsequently,  and 
after  the  payment  of  the  first  instalment,  C  took  from  B  his  bond 
for  an  extended  time,  to  secure  the  same  debt.  Held,  that  by  the 
payment  of  the  original  debt  as  above,  C  became  subrogated  to 
the  j)lace  of  A,  the  creditor,  and  that  by  giving  time  to  B,  the 
same  results  followed  as  if  C  had  been  the  original  creditor.  C 
could  not,  therefore,  recover  contribution  from  D.*  After  judg- 
ment against  a  j^rincijDal  and  two  sureties,  the  creditor  gave  time 
to  one  of  the  sureties.  Held,  he  thereby  discharged  the  other 
surety  from  liability  to  him  for  the  portion  of  the  debt  which  the 
surety  to  whom  the  time  was  given  was  liable  to  contribute.' 
Two  sureties  entered  into  an  indemnity  bond,  and  one  of  them 
being  pressed  for  payment,  gave  a  warrant  of  attorney  to  confess 
judgment  for  the  debt,  due  at  a  future  time,  and  afterwards  paid 
the  debt.  Held,  that  the  giving  of  time  to  him  by  the  creditor, 
did  not  discharge  his  co-surety  from  liability  to  contribute.* 

§  245.  Contribution  as  affected  by  release  of  principal  or  of 
co-surety — Failure  of  consideration — Set  off,  etc, — -If  a  surety  re- 
leases tlie  principal  from  liability  to  indemnify  him,  he  thereby 
releases  his  co-surety  from  contribution.^  If  there  are  three 
sureties,  and  one  of  them  pays  the  debt  and  releases  one  of  the 
others  npon  payment  of  less  than  his  share,  he  may  recover  from 

'Brown     v.     McDonald,   8    Yerg.  » He  ».  Churchill,  14  Ohio  St.  372. 
(Tenn.)  158;  Beckham  v.  Pride,  6  Rich-          ^  Dunn  v.  Slee,  1  Moore,  2. 
ardson  Eq.  (So.  Car.)  78;  Boughton  v.  *  Draughan  v.  Bunting,  9  Ired.  Law- 
Bank  of  Orleans,  2  Barb.  Ch.  R.  458.  (Nor.  Car.)  10;   Fletcher  v.  Jackson, 

">  Cameron  v.  Boulton,  9  Up.  Can.  C.  23  Vt.  581. 
P.  R.  537. 


RELEASE    OF    PKINCIPAL.       SET-OFF.  339 

the  third  surety  one-third  of  the  debt  which  he  has  paid.*  The 
right  to  contribution  between  co-sureties  is  not  destroyed  by  the 
fact  that  they  agree  among  themselves  to  pay  and  do  pay  the 
debt  due  a  bank,  in  the  notes  of  the  bank.^  Wliere  a  surety  is 
released  by  the  creditor,  with  the  consent  of  his  co-sureties,  he 
thereupon  ceases  to  be  co-surety  with  them,  and  is  not  afterwards 
liable  to  them  for  contribution/  If  one  of  several  co-sureties 
agrees  to  pay  the  entire  note  on  which  they  are  liable,  but  the 
consideration  for  the  agreement  fails,  and  he  afterwards  pays  the 
note,  he  will  not  be  prevented  by  the  agreement  from  recovering 
contribution  from  his  co-sureties.  The  action  for  contribution 
being  an  equitable  one,  equitable  principles  should  prevail.*  It 
has  been  held  that  in  an  action  by  a  surety  against  his  co-surety 
for  contribution,  the  latter  cannot  defend  by  setting  up  by  way 
of  counter-claim  recoupment  or  set-off  a  cause  of  action  existing 
in  favor  of  the  principal  against  the  plaintiff.^  A  being  princi- 
pal, and  B,  C  and  D  sureties,  they  all  became  insolvent  except 
D,  who  paid  the  debt.  Before  such  payment,  but  after  C  and  D 
became  sureties,  D  executed  his  bond  to  C  for  a  sum  less  than 
half  the  amount  of  the  debt  for  which  they  were  liable  as  A's 
sureties,  and  C  assigned  this  bond  to  a  trustee  for  the  benefit  of 
his  creditors.  Held,  the  trustee  stood  in  no  better  position  than 
0  and  D  might  by  bill  in  equity  set  off  C's  liability  to  him  as  co- 
surety against  his  liability  on  the  bond.'  A  and  B  were  the  pay- 
ees and  accommodation  indorsers  of  a  note  made  for  the  accom- 
modation of  C,  and  signed  by  him  Having  been  obliged  to  pay 
the  note,  A  sued  C  for  indemnity,  after  his  remedy  against  C  on 
the  note  was  barred  by  the  statute  of  limitations,  but  within  apt 
time  after  he  paid  the  money.  Held,  he  was  not  entitled  to  re- 
cover. The  court  said  that  his  only  remedy  against  C  was  on  the 
note,  and  that  was  barred  by  the  statute.  Until  the  time  of  Lord 
Mansfield,  the  surety  had  no  remedy  at  law  against  his  principal 
on  an  implied  promise.  His  remedy  for  reimbursement  was  in 
equity,  unless  he  took  a  b(md  to  secure  indemnity.  Implied 
promises  will  not  be  raised  where  there  is  no  necessity  for  it. 

'  Currier  v.  Baker,  51  New  Hamp.  *  Prindle  v.  Page,  21  Vt.  94. 

613.  6  O'Blenis  v.  Karing,  57  New  York, 

2  Derossett  v.  Bradley,  63  Nor.  Car.      649. 

17.  «  Wayland  v.  Tucker,  4  Gratt.  (Va.) 

3  Moore  v.  Isley,  2  Dev.  &  Batt.  Eq.      267. 
(Nor.  Car.)  372 


34:0  EIGHTS   OF    SURETIES    BETWEEN    EACH    OTHER. 

"  If  the  party  choose  to  take  a  security,  there  is  no  occasion  for 
the  law  to  raise  a  promise.  '  Promises  in  law  only  exist  where 
there  is  no  express  stipulation  between  the  parties."  * 

§  246.  How  far  judgment  against  one  surety  evidence  against 
co-surety  in  suit  for  contribution — Failure  of  consideration. — 
"\Yliere  a  judgment  was  recovered  against  a  principal  and  one 
surety,  which  was  paid  by  the  latter,  it  was  held  in  a  suit  by  such 
surety  against  a  co-surety,  for  contribution,  that  the  co-surety 
could  not  show  as  a  defense  that  the  consideration  of  the  note  on 
which  they  were  both  sureties,  had  failed.  The  court  said:  "No 
question  of  consideration  is  involved  in  the  contest  between  co- 
sureties, for  they  enter  into  the  undertaking  without  reference,  as 
between  themselves,  to  the  consideration  paid  their  principal.  If 
his  contract  was  entirely  without  consideration,  the  relative  rights 
of  these  parties  would  be  precisely  the  same,  and  on  payment  by 
one,  the  right  to  contribution  is  called  into  existence.  Each  has 
impliedly  agreed  with  the  other  to  protect  him  to  the  extent  of 
the  joint  undertaking  against  the  consequences  arising  out  of  the 
failure  of  the  principal." ''  It  has  been  held  that  a  joint  judgment 
against  co-sureties  is,  in  a  suit  between  them  for  contribution,  con- 
clusive evidence  that  a  cause  of  action  existed  against  them.' 
Where  judgment  is  recovered  against  part  of  the  sureties,  in  a  bond 
which  is  satisfied  by  them,  it  has  been  held,  in  a  suit  by  them 
against  their  co-sureties,  for  contribution,  that  such  judgment  is 
competent  evidence  to  show  the  amount  of  the  payment  made  by 
the  plaintiffs,  and  the  circumstances  under  which  it  was  made, 
but  not  for  the  purpose  of  proving  the  liability.^ 

§  247.  When  surety  can  recover  contribution  for  costs  paid 
by  him. — Whether  a  surety  can  recover  from  his  co-surety  con- 
tribution for  the  costs  of  a  suit  against  him,  for  the  collection  of 
the  debt,  depends  upon  the  circumstances  of  each  case.  Where 
a  joint  judgment  is  recovered  against  the  principal  and  two  sure- 
ties, or  against  two  sureties  alone,  and  one  of  them  pays  it,  he 
can  recover  one-half  of  the  costs  of  the  suit  from  his  co-surety. 
In  holding  this  principle,  it  has  been  said:  "The  failure  to  pay 

'  Kennedy  v.  Carpenter,  2  Wharton  ^  Cave  v.    Bums,  6    Ala.  780,    per 

(Pa.)  344.    Holding  that  one  surety  on  Goldthwaite,  J. 

a  sheriff 's  bond  cannot  recover  at  law  ^  Waller  v.  Campbell,  25  Ala.  544. 

on  the  bond  against  his  co-sureties,  ^  Fletcher  u.  Jackson,  23  Vt.  581. 
see  Mitchell  v.  Turner,  37  Ala.  660. 


ESTATE    OF   DECEASED    CO-SURETY    MUST   CONTEIBUTE.  341 

wliicli  occasioned  tlie  costs,  was  imputable  to  the  defendant  as 
mucli  as  to  tlie  plaintiff.  The  plaintiff  paid  the  execution,  in- 
cluding the  costs.  *  The  costs  cannot  be  distinguished  from  the 
debt.  Every  equitable  principle  which  entitles  the  plaintiff  to 
contribution  for  the  one,  applies  equally  to  the  other."  ^  So,  a 
surety  may  recover  contribution  from  his  co-surety  for  the  costs 
and  expenses  of  defending  a  suit  against  him  for  the  debt,  if  the 
defense  was  made  under  such  circumstances  as  to  be  regarded 
prudent,"  Where  the  only  surviving  surety  on  a  joint  bond  (he 
alone  being  subject  to  an  action  at  law)  is  sued,  and  defends  the 
action  honajlde^  and  thereby  reduces  the  amount  of  the  creditor's 
demand,  the  representatives  of  a  deceased  co-surety  are  liable  to 
contribute  towards  payment  of  the  costs,  and  other  expenses  in- 
curred in  defending  the  action  at  law.^  Where  two  co-sureties 
executed  a  warrant  of  attorney  on  which  judgment  was  entered 
up,  it  was  held  that  the  surety  who  paid  the  judgment  and  costs, 
could  recover  one-half  the  costs  from  his  co-surety.''  It  has,  how- 
ever, been  held  that  a  surety  cannot  recover  from  his  co-surety 
any  part  of  the  costs  of  defending  himself  in  a  suit  against  him 
by  the  creditor,  unless  the  co-surety  authorized  him  to  defend  the 
action.' 

§  248.  Estate  of  deceased  co-surety  liable  for  contribution. — 
If  two  co-sureties  become  bound  in  a  joint,  or  joint  and  several  ob- 
ligation, and  one  of  them  dies,  and  the  other  before  or  after  such 
death,  pays  the  debt,  he  can  recover  contribution  from  the  estate 
of  such  deceased  co-surety,  either  at  law  or  in  equity,  to  the  same 
extent  as  if  such  co-surety  was  alive.  As  between  co-sureties 
there  is  an  implied  agreement  for  contribution  at  the  time  they 
sign,  and  this  implied  agreement  is  not  joint,  but  several.  It  is 
like  any  other  promise  to  pay  money  for  which  the  personal  re- 
presentative of  the  deceased  promisor  is  liable;  and  it  makes  no 
difference  whether  the  default  was  committed  before  or  after  the 
death  of  the  promisor.* 

'Davis  V.  Emerson,  17  Me.  64,  y.er  *Kemp  v.  Finden,  12  Mees.&  Wels. 

Weston,   C.  J.;    see,  also,   Brigg3  v.  421. 

Boyd,  37  Vt.  534.  ^  John  v.  Jones,  16  Ala.  454;  Knight 

2  Fletcher  i\  Jackson,  23  Vt.  581 ;  see  v.  Hughes,  Moody  &  Mai.  247. 

also,  Breckenrid^e  v.  Taylor,  5  Dana  *  Bradley  v.  Burwell,  3  Denio,  61;  Ai- 

(Ky.)  110.  kin«;.  Peay,  5  Strob.  Law  (So.  Car.)  15; 

^McKenna  v.  George,  2  Richardson  Conover  v.  Hill,  76  111.  342;  Bachelder 

Eq.  (So.  Car.)  15.  v.  Fiske,  17  Mass.  464;    Stothoff  v. 


342  EIGHTS    OF   SUKETIES   BETWEEX    EACH    OTHER. 

§  2-40.  Surety  •who  pays  by  his  note  may  recover  contribution 
from  co-surety. — If  two  co-sureties  arc  bound  lor  a  debt,  and  one 
of  them  pays  it  by  giving  liis  own  note  for  it,  which  is  accepted 
by  the  creditor  as  payment,  the  surety  thus  paying  may  at  once 
and  before  paying  the  note  so  given  as  payment,  sue  his  co  surety 
for  contribution,  the  same  as  if  he  had  paid  the  debt  in  money. 
In  holding  this,  it  lias  been  said:  "Where  one  person  is  obli- 
gated to  pa}'  money  for  the  use  of  another,  a  payment  made  in 
any  mode,  either  j^roperty  or  negotiable  paj)cr,  or  securities,  if  such 
payment  is  received  as  full  satisfaction  of  the  demand,  it  is 
equivalent  to,  and  will  be  treated  as,  a  payment  in  cash.  *  Where 
the  payment  is  received  as  a  complete  satisfaction,  and  the  debt  or 
obligation  is  extinguished,  it  is  a  matter  of  no  moment  to  the 
person  to  wliose  use  the  payment  is  made,  whether  it  is  made  in 
money,  property  or  obligations.  The  benefit  to  him  is  the  same, 
and  the  obligation  to  refund  should  be  the  same."  ^ 

§  250^  "What  contribution  surety  -who  pays  in  land  entitled  to 
recover. — Where  a  surety  paid  the  debt  of  the  principal  in  lands, 
it  was  held,  in  a  suit  for  contribution  by  him  against  a  co-surety, 
that  the  price  at  which  the  lands  were  taken  as  payment  by  the 
creditor,  would  ordinarily  be  the  amount  on  whicli  the  damages 
should  be  founded,  but  if  the  lands  were  taken  at  a  very  high 
price,  as  a  compromise  of  a  doubtful  claim,  tlie  actual  value  of 
the  lands  might,  perhaps,  be  the  basis  of  the  damages,  and 
in  such  case  the  actual  value  of  the  lands  should  be  allowed,  no 
matter  whnt  they  cost  the  surety.''  Where  a  principal  was  insol- 
vent, and  one  of  two  co-sureties  paid  the  debt  in  real  estate,  which 
was  taken  by  the  creditor  at  about  twice  its  value,  on  account  of 
tiie  failing  condition  of  the  parties,  it  was  held  that  the  surety 
thus  paying  was  entitled  to  recover  from  his  co-surety,  as  con- 
tribution, one-half  of  what  the  real  estate  was  worth,  and  no  more.' 

Dunham's  Exrs.  4  Harrison  (N.  J.)  181;  Ala.  547;  Anthony  v.  Percifull,  8  Ark. 
McKenna  v.  George,  2  Richardson's  (3  Eng.)  494;  Hutchins  v.  McCauley, 
Eq.  (So.  Car.)  15;  con fra,  Waters  v.  2  Dev.  &  Bat.  Eq.  (Nor.  Car.)  399; 
Riley,  2  Harris  &  GUI.  (Md.)  305.  As  White  i'.  Carlton,  52  Ind.  371;  Rob- 
to  when  the  estate  of  a  deceased  sure-  ertson  v.  Maxcey,  6  Dana  (Ky.)  101. 
ty  which  has  been  distributed  to  his  Contra,  Brisendine  v.  Martin,  1  Ired. 
heirs,  is  liable  to  contribute  to  a  co-  Law  (Nor  Car.)  286;  Nowland  v.  Mar- 
surety  who  has  paid  the  debt,  see  Wil-  tin,  1  Iredell  Law  (Nor.  Car.)  307. 
liams  V.  Ewing,  31  Ark.  229.  « jo^gg  ^_  Bradford,  25  Ind.  305. 

'  Ralston  v.  Wood,    15  111.  1-59,   per  ^  Hickman  v.  McCurdy,  7  J.  J.  Mar. 

Caton,  J.;  Pinkston  v.  Taliaferro,  9  (Ky.)  555. 


PROPOETIOKS    IN    WHICH    SURETIES    MUST    CONTRIBUTE.  343 

§  251.  When  surety  who  has  paid  less  than  his  share  of  the 
debt  cannot  recover  contribution. — A  surety  who  has  paid  a 
portion  of  the  debt,  leaving  the  remainder  unpaid,  cannot  usually 
recover  contribution  from  his  co-surety,  unless  the  amount  so 
paid  by  liim  is  more  than  his  share  of  the  common  debt.  The 
co-surety  ma}^,  in  such  case,  pay  the  remainder  to  the  creditor. 
In  holding  this,  it  has  been  said  that:  "The  right  to  contribu- 
tion is  founded,  not  on  contract,  but  on  the  principle  that  equality 
of  burden,  as  to  a  common  right,  is  equity.  -  Wliere  joint 
promisors  or  co-sureties  have  received  equal  benefits,  or  been 
relieved  from  common  burthens,  neither  shall  recover  over 
against  another,  unless  for  the  excess  paid  by  him  beyond  his  due 
proportion  or  equal  share." '  If,  however,  a  surety  discharges 
the  entire  debt  by  payment  of  less  than  his  share,  he  may  re- 
cover contribution  from  his  co-surety.*  Where  one  of  two  co- 
sureties of  an  insolvent  administrator,  purchased,  at  a  discount, 
legacies  for  which  the  sureties  were  bound,  it  was  held  he  could 
only  charge  his  co-surety  for  one-half  of  what  he  paid  for  the 
legacies,  and  one-half  the  expense  of  purchasing  th^m." 

§  252.  In  -what  proportions  co-sureties  are  liable  to  contri- 
bute.— If  one  of  several  co-sureties  who  are  equally  bound 
for  the  debt,  pays  it,  he  has  a  right  in  equity  to  recover,  as  con- 
tribution from  his  solvent  co-sureties,  a  pro  rata  amount  of  the 
sum  paid  by  him,  based  upon  the  number  of  solvent  co-sureties, 
and  excluding  the  insolvent  ones.*  The  fact  that  one  of  several 
co-sureties  has  left  the  state,  has  in  this  regard  been  considered 
equivalent  to  his  insolvency.^  As  a  general  rule,  the  surety  who 
has  paid  the  debt  can  at  law  only  recover  from  his  solvent  co- 
sureties an  aliquot  part  of  the  debt,  based  on  the  whole  number 
of  co-sureties,  solvent  and  insolvent.^  But  in  a  state  where  there 
were  no  courts  of  equity,  it  was  held  that  the  surety  who  paid  the 

'Fletcher  v.  Grover,  11  New  Hamp.  Law  (Nor.  Car.)  377;  Klein  r.  Mather, 

368;   per  Woods,  J.  Davies  v.  Hum-  2  Gihnan  (111.)  317;  Burroughs  t;.  Lett, 

phreys,  6  Mees   &  Wels.  153;  Lytles'  19  Cal.  125;  Young  v.  Clark,  2  Ala. 

Exrs.  V.  Pope's  aclmr.  11  B.  Mon.  (Ky.)  264  ;  Breckinridge  v.  Taylor,  5   Dana 

297.  (Ky.)  110. 

^Stallworth  v.  Preslar,  34  Ala.  505.  *  McKenna  v.  George,  2  Richardson 

^Tarr    v.    Ravenscroft,    12     Gratt.  Eq.  (So.  Car.)  15. 

(Va.)  642.  eStothoff  v.  Dunham's  Exrs.  4  Hatr- 

^  Powell  V.  Matthis,   4  Ired.  Law,  rison  (N.  J.)  181;  Morrison  v.  Foyntz, 

(Nor.  Car.)  83;  Yoong  v.  Lyons,  8  Gill  7  Dana  (Ky.)  307;  Cowell  v.  Edwards, 

(Md.)  162;  Samuel  v.  Zachery,  4  Ired.  2  Bos.  &  Pul.  268. 


3-i4  EIGHTS   OF   SURETIES    BETWEEN   EACH    OTHEE. 

debt  iniglit  at  law  recover  contribution  based  on  the  number  of 
solvent  co-sureties,  and  excluding  the  insolvent  ones.'  On  a 
question  of  contribution,  partners  who  sign  in  the  partnership 
name  are  to  be  regarded  as  but  one  surety.'^  Whatever  the  num- 
ber of  the  principals  may  be,  it  cuts  no  figure  with  reference  to 
the  amount  of  contribution  which  will  be  enforced  between  co- 
sureties.' If  three  co-sureties  agree  among  themselves  when 
they  sign,  that  if  the  princijml  fails  to  pay  thej  will  each  pay  one 
third,  the  surety  who  pays  the  whole  debt  can  only  recover  from 
a  solvent  co-surety  one-third  of  the  amount  so  paid,  even  though 
the  other  co-surety  is  insolvent.^  Where  three  persons  give  a 
note  for  their  joint  debt,  each  is  to  be  considered  with  respect  to 
the  other  as  a  sui"ety  with  regard  to  two-thirds,  and  as  a  principal 
with  regard  to  one- third  of  the  debt;  and  if  one  be  insolvent  and 
another  pays  the  whole  debt,  the  third  shall  contribute  one-half 
to  the  one  who  pays.^  Where  co-sureties  are  bound  for  the  same 
thing,  but  in  different  amounts,  they  are  liable  to  contribute  in 
the  proportion  of  the  amounts  of  the  obligations  signed  by  them 
respectively.  *  Thus,  A  became  bound  for  a  deputy  sheriff,  in  a 
bond  of  82,000.  B  became  liable  for  the  same  deputy  on  a  sim- 
ilar bond  for  $18,000.  A  was  obliged  to  pay  the  $2,000.  Held, 
he  was  entitled  to  recover  from  B  eight-ninths  of  the  amount  so 
paid  by  him.*  In  another  case,  A  was  a  guardian,  and  B  became 
his  surety  in  a  bond  of  $10,000.  C  subsequently  became  A's 
surety  in  a  bond  of  $5,000 ;  both  sureties  being  liable  for  the  same 
thing,  but  in  these  amounts.  Held,  that  B  might  recover  from 
C  one  third  of  the  amount  which  he  had  paid  for  the  default  of 
the  common  principal.'  But  where  several  stockholders  of  a  cor- 
poration, each  owning  different  amounts  of  stock,  signed  a  note 
as  surety  for  the  corporation,  and  one  of  them  paid  such  note,  it 
was  held,  he  was  entitled  to  recover  contribution  from  his  co- 
sureties, based  on  their  number,  and  not  on  the  amount  of  stock 
held  by  them  respectively.* 

^  Henderson  v.  DufFee,  5  New  Hamp.  ^  Annitage  v.  Pulver,  37  New  York, 

38.  494. 

2  Chaffee  v.  Jones,  19  Pick.  260.  "'  Bell  v.  Jasper,  2  Iredell's  Eq.  (Nor, 

*  Kemp  V.  Frinden,  12  Mees.  &  Wels.  Car.)  597.   To  same  effect,  see  Jones  v. 

421.  Blanton,  6  Iredell's  Eq.  (Nor.  Car.) 

^  Swain  v.  Wall,  1  Reports  in  Chan-  115. 

eery,  149  ^  Cobum  v.  Wheelock,  84  NewYork, 

«  Henderosn  t).  Duffee,  5  N.Hamp.  38.  440. 


CONTKIBUTION   AT   LAW   AND    IN   EQUITY.  345 

§  253.  Surety  may  recover  contribution  either  at  lavr  or  in 
equity. — One  of  several  co-sureties  who  lias  paid  the  debt,  may 
recover  contribution  from  the  others  in  a  suit  at  law,  for  money 
paid  for  their  use,  or  he  may  bring  his  suit  for  contribution  in 
chancery.  Originally  the  only  remedy  was  in  chancery,  but 
courts  of  law  afterwards  assumed  jurisdiction.  Tlie  fact,  however, 
that  courts  of  law  have  assumed  jurisdiction  in  this  matter,  or 
that  it  has  been  conferred  upon  them  by  statute,  does  not  oust 
equity  of  its  original  jurisdiction.  With  reference  to  this  it  has 
been  said  :  "The  right  to  sue  in  chancery  for  contribution,  was 
an  established  head  of  chancery  jurisdiction  in  the  time  of  Queen 
Elizabeth  on  the  plain  principles  of  natural  justice.  '-  Ulti- 
mately courts  of  law  entertained  actions  between  sureties,  but 
the  court  of  chancery  did  not  on  that  account  renounce  its  juris- 
diction. This  tribunal  still  exercises  a  concurrent  jurisdiction  in 
all  cases  for  contribution  between  sureties."  * 

§  254.  Whether  surety  must  show  insolvency  of  the  princi- 
pal in  order  to  recover  contribution, — In  an  action  at  law  by  a 
surety  against  his  co-surety  for  contribution,  the  weight  of  author- 
ity seems  to  be,  that  the  insolvency  of  the  principal  need  not  be 
averred  nor  proved.^  It  has,  however,  been  repeatedly  held, 
that  in  a  suit  in  equity  by  one  surety  against  another  for  contri- 
bution, no  recovery  can  be  had  unless  the  principal  is  shown  to 
be  insolvent,  on  the  ground  that  the  right  to  contribution  does 
not  rest  on  contract  but  on  natural  justice,  and  this  element  is 
wanting  when  the  principal  is  solvent.'  As  the  right  to  contri- 
bution is  grounded  upon  the  same  reasons,  both  at  law  and  in 
equity,  it  seems  that  the  rule  should  be  the  same  in  both  juris- 
dictions. 

§  255.      When  suit  for  contribution  should   be  joint  and  when 

'  Conch  V.  Terry,  12  Ala.  225,  per  50  Ind.  158;  Roberts  v.  Adams,  6  Port. 

Collier,  C.  J.;    Kemp  v.  Finden,    12  (Ala.)  361;   co»fra,  Morrison  f.  Poyntz, 

Mees.  &  Wels.  421 ;  Bachelder  r.  Fiske,  7  Dana  (Ky . )  307. 

17  Mass.  464;  Sloo  v.  Pool,  15  111.  47;  s^^i^iel  v.   Ballard,   2  Dana  (Ky.) 

Foster  v.  Johnson,  5  Vt.  60;  Crowder  296;  Rainey «'.  Yarborough,  2  Ired.  Eq. 

V.  Denny,  3  Head  (Tenn.)  359;   con-  (Nor.  Car.)  249  ;  Boiling-  v.  Doneghy, 

ira,  Carrington  v.  Carson,  Conference  1  Duvall  (Ky.)  220;  Allen  v.  Wood, 

Reports  (Nor.  Car.)  216.  3  Ired.  Eq.  (Nor.  Car.)  386;  Lawson  v. 

« Judah  ».  Mieure,  5  Blackf.   (Ind.)  Wright,    1    Cox,   275;    McCormack's 

171;     Caldwell    v.    Roberts,    1   Dana  Admr.    v.  Obannon's    Exr.   8  Munf. 

(Ky.)  355;  Buckner's  Admr.  v.  Stew-  (Va.)  484. 
art,  34  Ala.  529;  Rankin  v.  Collins, 


340  EIGUTS   OF   SURETIES   BETWEEN    EACH    OTHER. 

several. — AVhcre  two  or  more  co-sureties  jointly  pay  the  debt, 
they  may  join  in  a  suit  either  at  law  or  in  equity  against  a 
co-surety  for  contribution,'  but  when  each  pays  separatelj'  they 
cannot  usually  join  in  such  a  suit.'^  If  one  of  several  co-sureties 
])avs  the  debt,  he  cannot  usually  maintain  a  joint  action  for  con- 
tribution against  his  co-sureties/  A  surety  who  has  paid  the 
debt  cannot  sue  his  principal  and  a  co-surety  jointly  for  reim- 
bursement/ If  two  co-sureties  pay  the  debt  by  their  joint  note, 
they  may  join  in  a  suit  for  contribution  against  another  co-surety, 
even  though  the  latter  became  surety  for  them  on  the  note  with 
which  they  paid  the  debt/  Where  three  of  four  co-sureties  paid 
part  of  the  debt  in  money,  each  paying  an  equal  amount,  and  for 
the  remainder  gave  their  note,  which  was  accepted  as  payment, 
it  was  held  that  each  might  maintain  a  separate  suit  for  contri- 
bution against  the  fourth  surety/  Four  parties  were  liable  as 
co-sureties,  and  two  of  them  each  gave  one-third  the  amount  of 
the  debt  to  a  third  surety,  who  put  the  remaining  third  necessary 
to  pay  the  debt  with  the  money  thus  given  him,  and  therewith 
paid  the  debt.  Held,  the  three  sureties  thus  paying  might  join 
in  a  suit  against  the  fourth  for  contribution.  This  was  put  upon 
the  ground  that  each  of  the  three  sureties  had  paid  the  one-fourth 
which  he  ought  to  pay,  and  then  each  liad  contributed  an  equal 
sum  to  pay  the  amount  for  which  the  other  surety  was  liable,  and 
had  paid  it  in  one  payment.  The  Court  said:  "We  are  of 
opinion  that  when  three  persons,  each  of  whom  is  responsible 
for  an  entire  sum,  due  from  another,  join  in  making  the  payment 
of  that  sum  by  a  contribution  agreed  on  among  themselves  for 
that  purpose,  they  may  join  in  one  action  to  recover  it  from  the 
person  for  whose  benefit  the  payment  has  been  made."  "^  Ten 
parties  became  sureties  in  a  bond,  and  the  principal  and  four  of 
the  sureties  became  insolvent.  Five  of  the  solvent  sureties  paid 
the  debt,  each  paying  an  equal  amount,  and  brought  a  joint  bill 
in  equity  for  contribution  against  the  remaining  solvent  surety. 
Held,  the  bill  could  be  maintained,  although  it  was  admitted  that 

^Dussol  V.  Bruguiere,  50  Cal.  456;  *Burnham  v.  Choat,  5  Up.  Can.  K. 

Fletcher  v.  Jackson,  23  Vt  581.  B.  R.  (0.  S.)  736. 

« Lombard  v.  Cobb,  14  Me.  222;  Pres-  ^  Prescott  v.  Newell,  39  Vt  82. 

cott  V.  Newell,  39  Vt.  82.  «  Atkinson  v.   Stewart,   2  B.  Mon. 

•Powell   V.  Matthis,  4  Ired.   Law  (Ky  )  348. 

(Nor.  Car.)  83.  ^  Clapp  v.  Rice,  15  Gray  (Mass.)  557, 

per  Hoar,  J. 


SUEETY    WHO    PAYS    WITHOUT    COMrULSION.  347 

if  the  action  had  been  at  law  several  suits  would  have  been 
necessary.^  A,  B  and  C  being  co-sureties,  judgment  was  recovered 
against  them,  and  execution  was  levied  on  separate  property 
belonging  to  each.  A  and  B  paid  the  judgment  and  filed  a  joint 
bill  against  C  and  others,  to  be  subrogated  to  the  lien  of  the 
levy  on  the  land  of  C,  and  to  set  aside  certain  conveyances 
thereof  by  C,  which  were  alleged  to  be  fraudulent.  Held,  the 
bill  might  be  maintained.  The  Court  said  that  the  object  sought 
by  the  suit  was  the  benefit  of  the  levy.  The  levy  is  an  entire 
thing  in  the  sense  of  giving  a  lien  capable  of  being  enforced  by 
sale  for  complainant's  benefit;  and  their  rights  and  interests, 
however  separate  in  regard  to  their  payments  to  the  creditor 
and  in  regard  to  their  claim  against  the  pocket  of  their  co-surety 
come  together  and  join  in  the  pursuit  and  subjection  of  the  lien.' 

§  256.  Who  not  necessary  parties  to  a  bill  for  contribution, 
etc. — To  a  suit  in  equity  by  a  surety  who  has  paid  the  debt  against 
a  co-surety  for  contribution,  neither  an  insolvent  principal  nor  in- 
solvent co-sureties  are  necessary  parties.'  It  has  also  been  held 
that  a  solvent  co-surety  who  lives  out  of  the  state  is  not  a  neces- 
sary party  to  a  suit  in  equity  for  contribution  between  the  other 
sureties.^  Where  one  of  two  partners  is  insolvent,  and  has  ab- 
sconded, and  the  other  is  dead,  leaving  a  solvent  estate,  a  surety 
for  the  firm  who  has  j^aid  the  debt,  may  proceed  in  equity  against 
the  estate  of  the  deceased  partner,  without  prosecuting  a  suit 
against  the  survivor.^ 

§  257.  Surety  may  ■without  compulsion  pay  debt  ■when  due- 
and  immediately  sue  co-surety  for  contribution  ■without  demand 
or  notice. — As  soon  as  the  debt  becomes  due,  any  one  of  several 
co-sureties  may,  without  suit  or  compulsion  on  him  of  any  kind, 
at  once  pay  the  debt  and  recover  contribution  from  his  co-sureties. 
All  the  co-sureties  are  equally  liable  for  the  whole  debt,  and  a 
payment  of  the  debt  by  one  of  them  after  it  is  due  and  without 
compulsion  is  in  no  sense  a  voluntary  payment.®  And  in  such 
case  tlie  surety  who  pays  the  debt  may  immediately  and  without 

'  Young  V.  Lyons,  8  Gill  (Mel.)  162.  ^  Jones  v.  Blanton,  6  Ired.  Eq.  (Nor. 

«  Smith  V.  Rumsey,  33  Mich.  183,  per  Car.)  1 15. 

Graves,  J.  ^  Horsey  v.  Heath,  5  Ohio,  353. 

^Byers     v.    McClanahan,   6  Gill  &  « Judah  i^.  Mieure,  5  Blackf.  (Ind.) 

Johns.  (Md.)250:  Johnson's  Admrs.  v.  171;  Bradley  v.  Burwell,  3  L  .jiio,  61; 

Vaughn.  65  111.  425;  Young  v.  Lyons,  StaUwortht;.  Preslar,  34  Ala.  505;  Pitt 

8  Gill  (Md.)  1G2.  v.  Purssord,  8  Mees.  &  Wels.  538;  Lucas 


34S  EIGHTS   OF    SURETIES   BETWEEN    EACH    OTIIEK. 

any  demand  on  liis  co-snrety,  or  notice  to  him,  sue  liim  for  con- 
tribution. In  holding  this,  it  has  been  said  that  upon  payment 
by  the  surety,  "  the  law  immediately  raised  an  obligation  from 
the  defendant  to  the  plaintiff  to  pay  an  aliquot  part  of  this  sum, 
according  to  the  number  of  the  sureties.  It  was  a  present  debt. 
It  was  a  payment  for  the  use  of  the  defendant  upon  his  request, 
implied  by  law;  no  special  demand  and  notice  were  therefore 
necessary." ' 

§  258.  "When  liability  to  contribution  attaches. — The  lia- 
bility of  one  surety  to  another  for  contribution,  and  of  the  prin- 
cipal to  a  surety  for  indemnity,  attaches  or  springs  up  at  the  time 
the  obligation  which  they  have  signed  is  delivered,  and  whenever 
payment  may  be  made  by  the  surety,  he  is  considered  as  a  credi- 
tor of  his  principal  or  co-surety  from  the  time  the  obligation 
was  made  and  delivered.  This  princijjle  is  applicable  to  a  case 
where,  after  the  obligation  is  delivered,  and  before  it  is  paid,  the 
jDrincipal  or  co-surety  makes  a  conveyance  of  his  property,  which 
the  surety  who  pays  seeks  to  set  aside  as  fraudulent.^ 

§  259.  When  claim  for  contribution  barred  by  the  statute  of 
limitations. — The  statute  of  limitations  begins  to  run  between 
co-sureties  at  the  time  the  debt  is  paid,  irrespective  of  the  time 
when  the  obligation  was  entered  into  or  became  due.*  The  surety 
who  has  paid  more  than  his  share  of  the  debt,  may  for  every 
separate  payment  he  makes,  sue  his  co-security  for  contribution, 
and  the  statute  of  limitations  runs  against  each  payment  from 
the  time  it  is  made.*  Where  suit  is  commenced  against  one  of 
two  co-sureties  before  the  debt  is  barred  by  the  statute  of  limita- 
tions, and  judgment  is  recovered  against  him,  and  the  debt  paid 
by  him  after  the  time  when  the  statute  would  have  been  a  bar  if 
no  suit  had  been  previously  brought,  and  after  the  debt  is  barred 

V.  Guy,   2  Bailey  Law  (So.  Car.)  403;  387;  Singleton  v.  Townsend,  45  Mo. 

Linn   v.   McClelland,   4  Devereux    &  379;  Biougbton  v.  Robinson,  11  Ala. 

Batt.  Law.  (Nor.  Car.)  458.  922;  Knotts  v.  Butler,  10  Richardson, 

^  Chaffee  v.  Jones,  19  Pick.  260,  per  Eq.  (So.  Car.)  143;  Camp  v.  Bostwick, 

Shaw,  C.  J.;  Cage  v.  Foster,  5  Yerg.  20  Ohio  St.  337;  Preslar  v.  Stallworth. 

(Tenn.)  261:  Wood  z?.  PeiTy,  9  Iowa,  37  Ala.  402;  Sherrod  v.  Woodard,  4 

479;  Parham  v.  Green,  64  (Nor.  Car.)  Devereux  Law  (Nor.  Car.)  360;  Stall- 

436  ;    contra,   Carpenter   v.    Kelly,  9  worth  v.  Preslar,  34  Ala.  505;  May  v. 

Ohio,  106.  Vann,  15  Fla.  553. 

''Sargent  v.  Salmond,  27  Me.  539;  ^Davies  v.  Humphreys,  6  Mees.  & 

Wayland  v.  Tucker,  4  Gratt.  (Va.)  267.  Wels.  153. 

*Wood  V.  Leland,   1  Met.  (Mass.) 


STATUTE    OF   LIMITATIONS.  84:9 

by  tlie  statute  against  the  co-surety,  the  statute  begins  to  run 
between  the  sureties  from  the  time  of  payment,  and  the  surety 
who  pays  may  recover  contribution  from  his  co-surety  at  any 
time  after  such  payment  and  within  the  statutory  limitation.' 

'  Crosby  v.  Wyatt,  10  New  Hamp.  peculiar  circumstances,  see  William- 

318;  Crosby  v.  Wyatt,  23  Me.   156.  son's  Admr.  v.  Rees's  Admr.  15  Ohio, 

For  case   holding  surety  discharged  572. 
from  contribution  by  long  delay  under 


CHAPTER  XII. 


OF    SUBEOGATION. 


Section. 

Surety  who  pays  the  debt  entitled 
to  subrogation.  How  far  his 
right  in  this  regard,  extends  ,  260 

Surety  not  entitled  to  subrogation 
till  he  pays  the  debt.  May 
waive  right  to  subrogation. 
Discharged  if  right  rendered 
unavailing  by  creditor       .        .  261 

Person  who  occupies  situation  of 
sui'ety  or  guarantor  entitled  to 
subrogation       ....  262 

Surety  may  enforce  subrogation 
by  suit  in  chancery    .        .        .  263 

How  far  surety  will  be  subrogated 
to  rights  of  creditor  in  suits 
commenced  by  him  for  recovery 
of the  debt         .        .        .        .264 

Subrogation  will  not  be  allowed 
when  it  is  inequitable  or  will 
prejudice  rights  of  creditor. 
Instances 265 

Surety  not  entitled  to  subrogation 
until  the  whole  debt  is  paid      .  266 

Surety  not  entitled  to  subrogation 
after  statute  of  limitations  has 
run,  nor  if  he  take  separate  in- 
demnity      267 

When  surety,  who  becomes  such 
during  prosecution  of  remedy 
against  principal,  not  entitled 
to  subrogation   ....  268 

Surety  who  pays  entitled  to  sub- 
rogation to  creditor's  rights 
against  co-surety      .         .        .  269 

Cases  holding  surety  who  pays 
amount  of  judgment,  entitled 
to  subrogation  thereto  without 
assignment         ....  270 

Cases   holding    that    surety  who 


Section. 
pa3's  amount  of  judgment  and 
takes  assignment  thereof,   can 
enforce  judgment      .        .        .  271 

Cases  holding  that  payment  of 
amount  of  judgment  by  surety 
extinguishes  it,  and  prevents 
subrogation  thereto  .        ,        .  272 

Whether  surety  who  pays  spe- 
cialty debt  of  principal  entitled 
to  rank  as  specialty  creditor      .  273 

Surety  entitled  to  subrogation  to 
all  securities  held  by  creditor. 
General  observations.  English 
statute 274 

Surety  who  pays  entitled  to  sub- 
rogation to  mortgage  given  by 
principal  to  creditor  for  securi- 
ty for  debt        .        ,        .        .275 

Indemnitor  of  surety,  who  pays 
debt,  entitled  to  subrogation. 
Subrogation  against  third  par- 
ties with  notice.  Marshaling 
assets.     Vendor's  lien       .        .  276 

Subrogation  of  sheriff 's  sureties   .  277 

Subrogation  of  sureties  of  admin- 
istrator, and  of  county  and  city 
treasurer 278 

Surety  for  part  of  debt  no  right  to 
subrogation  to  securities  for  an- 
other part  of  same  debt.  Similar 
cases  .        ,        .        .        .  279 

When  surety  subrogated  to  cred- 
itor's right  to  set  aside  fraudu- 
lent conveyances  by  principal. 
Other  cases        .        .        .        .280 

When  surety  not  entitled  to  sub- 
rogation as  against  special  bail 
of  the  principal  for  the  same 
debt.    Other  cases    .        .        .  281 


(350) 


SURETY    ENTITLED    TO    SUBROGATION. 


351 


Section. 

When  creditor  entitled  to  securi- 
ties given  by  principal  to  surety 
for  his  indemnity      .        .  282,  283 

Creditor  cannot  avail  himself  of 
personal  indemnity  given  sure- 


•  Section, 

ty,  unless  surety  could  have  done 

so 284 

Creditor  cannot  be  subrogated  to 
personal  indemnity  of  surety 
after  surety  is  discharged  .  285 


§  260.  Surety  who  pays  the  debt  entitled  to  subrogation — 
How  far  his  right  in  this  regard  extends. — Intimately  connected 
with  tlie  relation  of  principal  and  surety  is  the  doctrine  of  sub- 
rogation. Tliis  is  a  doctrine  of  the  court  of  chancery,  and  can- 
not usually  be  enforced  in  a  court  of  law.'  In  cases  where  the 
person  paying  a  debt  stands  in  the  situation  of  a  surety  or  guar- 
antor, equity  substitutes  him  in  the  place  of  the  creditor  as  a 
matter  of  course,  without  any  special  agreement  to  that  effect.  A 
mere  stranger  or  volunteer  who  pays  a  debt,  cannot  thus  be  sub- 
rogated to  the  creditor's  rigchts.*  It  has  been  said  "  That  the 
surety,  upon  performance  by  him  of  his  contract,  is  entitled  to 
the  original  evidences  of  debt  held  by  the  creditor,  and  to  any 
judgment  in  which  the  debt  has  been  merged,  as  well  as  to  all 
collateral  securities  held  by  the  creditor.  The  right  of  the  sure- 
ty is  not  only  that  of  subrogation,  pure  and  simple,  but  a  right 
to  an  assignment  by  the  creditor.  *  By  performing  the  con- 
tract of  suretyship,  the  principal  obligation  is  discharged  against 
the  creditor  and  is  kept  alive  between  the  creditor,  the  debtor 
and  the  surety,  for  the  purpose  of  enforcing  the  rights  of  the 
last."  ^  It  has  also  been  said  that  subrogation  is  a  mode  which 
equity  adopts  to  comj)el  the  ultimate  discharge  of  a  debt  by  him 
who  in  good  conscience  ought  to  pay  it,  and  to  relieve  him  whom 
none  but  the  creditor  could  ask  to  pay.*  Where  a  party  became 
bound  by  bond,  which  the  importer  and  owner  of  certain  goods 
did  not  sign,  for  duties  due  the  United  States,  and  afterwards 
paid  such  duties,  it  was  held  he  was  entitled  to  be  subrogated  to 
all  the  rights  and  preferences  of  the  United  States,  for  the  pay- 


'  Smith  V.  Harrison,  33  Ala.  706. 

-Griffin  v.  Omian,  9  Florida,  22; 
Winder  v.  Diff'enderffer,  2  Bland's  Ch. 
(Md.)  166;  Richmond  v.  Marston.  15 
Ind.  134;  Co9  V.  New  Jersey  Midland 
R.  R.  Co.  27  New  Jer.  Eq.  110;  Hough 
r.  J^tnaLife  Ins.  Co.  57  111.  318;  Wil- 
son V.  Brown,  2  Beasley  (N.  J.)  277; 
Shinn  V.  Budd,  1  McCarter  (N.  J.)  234. 


^  Fielding  v.  Waterhouse,  8  Jones  & 
Spencer  (N.Y.)  424,  per  Sedgwick,  J. 
To  same  effect,  S'^e  Berthold,  Admx.  v. 
Berthold,  46  Mo.  557. 

■*  McCormick's  Admr.  v.  Irwin,  35 
Pa.  St.  Ill,  per  Strong,  J.  See,  also, 
Heart  v.  Bryan,  2  Devereux  Eq.  (Nor. 
Car.)  147. 


352  SUBROGATION. 

inent  of  the  duties.  The  court  said  that  tlie  importer  remained 
liable  for  the  duties,  notwithstanding  the  giving  of  the  bond,  and 
the  signer  of  the  bond,  although  bound  by  a  separate  instrument, 
still  occupied  the  position  of  a  surety,  and  was  entitled  to  subro- 
o-ation  as  such.^  A  surety  who  becomes  such  at  the  request  of 
the  creditor,  and  without  any  request  from  the  principal,  is,  if  he 
pay  the  debt,  entitled  to  subrogation.  "  The  right  of  the  surety 
to  demand  of  the  creditor  whose  debt  he  has  paid,  the  securities 
he  holds  against  the  principal  debtor,  and  to  stand  in  his  shoes, 
does  not  depend  at  all  upon  any  request  or  contract  on  the  part 
of  the  debtor  with  the  surety,  but  grows  rather  out  of  the  rela- 
tions existing  between  the  surety  and  the  creditor,  and  is  founded 
not  upon  any  contract,  express  or  implied,  but  springs  from  the 
most  obvious  principles  of  natural  justice."  ^ 

§  261.  Surety  not  entitled  to  subrogation  till  he  pays  the 
debt — May  -waive  right  to  subrogation — Discharged  if  right  ren- 
dered unavailing  by  creditor. —  Generally  a  surety  or  guarantor 
does  not  become  entitled  to  subrogation  until  he  has  actually 
paid  the  debt  for  which  he  is  liable.^  But  it  makes  no  difference 
how  he  makes  such  payment.  Thus  sureties  who  pay  the  cred- 
itor in  the  creditor's  own  obligations,^  and  a  surety  who  borrows 
money  on  his  own  notes,  with  which  he  pays  the  debt,  but  who 
has  not  paid  such  notes,^  are  entitled  to  subrogation.  As  the 
surety,  when  subrogated,  stands  in  the  shoes  of  the  creditor,  he 
is  not  entitled  to  any  greater  rights  than  the  creditor  was  imme- 
diately before  payment.^  The  right  to  subrogation  may  be 
waived  by  the  surety.  Thus,  where  one  surety  consented  that  an- 
other surety  might  receive  an  indemnity  from  the  principal  for 
his  sole  benefit,  it  was  held  that  the  surety  so  consenting  could 
not  afterwards  be  subrogated  to  and  share  in  such  indemnity,  but 
was  bound  by  his  waiver,  even  though  no  consideration  passed 
between  the  sureties.''  A  judgment  was  recovered  against  a 
principal,  which  became  a  lien  on  his  land.     Afterwards  a  judg- 

^Enders  t\  Brune,4  RancloIpli(Va.)  ^Gilliam    v.    Esselman,    5    Sneed, 

438.  (Tenn.)  86. 

^  Mathews  v.  Aikin,  1  New  York,  *  City  of  Keokuk  v.  Love,  31  Iowa, 

595,   per  Johnson,   J.     See,   also,  on  119. 

this  subject,  McArthur  v.  Martin,  23  ^Stedman  i>.  Freeman,  15  Tnd.  86. 

Minn.  74;  Eaton  v.  Hastj',  6  Nebras-  « Do^jgj.  ,,_  Lewis,  27  Miss.  679. 

ka,  419;  Talbot  v.  Wilkins,  31  Ark.  '  Tyus  v.  De  Jarnette,  26  Ala.  280. 

411. 


PERSON  IN  POSITION  OF  SUEETY  ENTITLED  TO  SUBROGATION.    35P> 

ment  for  the  same  debt  was  recovered  against  B,  a  surety,  which 
he  paid.  Afterwards  C  recovered  a  judgment  against  B,  and 
still  later  D  recovered  a  judgment  against  B.  After  the  recovery 
of  all  the  judgments,  the  creditor  assigned  the  judgment  against 
the  principal  to  B,  who  was  entitled  to  subrogation  thereto,  and 
B  on  the  same  day  assigned  the  judgment  to  D.  Held,  he 
might  lawfully  do  so,  and  that  D  thereby  obtained  precedence  in 
said  assigned  judgment  over  C.  The  court  said  that  B's  "  right 
of  substitution  is  a  personal  one,  which  he  might  waive,  and 
what  right  has  his  creditor  to  insist  that  it  shall  be  exercised,  not 
for  his  benefit,  but  against  his  will."  ^  A  surety  upon  payment 
of  the  debt  is  entitled  to  subrogation  to  all  the  securities  held  by 
the  creditor  for  the  j)ayment  of  such  debt  at  the  time  the  same  is 
paid,  even  though  such  securities  were  acquired  without  the 
knowledge  of  the  surety,  and  after  he  became  bound.^  "  It  is  a 
well  settled  principle  that  the  surety  who  has  paid  the  debt  of 
his  principal,  is  entitled  to  stand  in  the  place  of  the  creditor  as 
to  all  securities  for  the  debt  held  or  acquired  by  the  creditor,  and 
to  have  the  same  benefit  from  them  as  the  creditor  might  have 
had.  *  If  the  creditor  parts  with,  or  renders  unavailable  se- 
curities, or  any  fund  which  he  would  be  entitled  to  apply  in  dis- 
charge of  his  debt,  the  surety  becomes  exonerated  to  the  extent 
of  the  value  of  such  securities,  because  securities  which  the 
creditor  is  entitled  to  apply  in  discharge  of  his  debt,  he  is  bound 
to  apply,  or  to  hold  them  as  a  trustee,  ready  to  be  applied  for  the 
benefit  of  the  surety."^ 

§  262.  Person  who  occupies  situation  of  surety  or  guarantor 
entitled  to  subrogation. — An}^  one  who  stands  in  the  position  of  a 
surety  or  guarantor,  whether  strictl}^  and  technically  such  or  not, 
is  entitled  to  subrogation  the  same  as  a  surety  or  guarantor. 
Thus,  the  grantor  of  land  who  has  been  obliged  to  pay  a  mort- 
gage which  had  b^een  assumed  by  the  grantee  as  part  of  the  pur- 
chase money,  is  entitled  to  subrogation.*  One  of  two  joint  pur- 
chasers of  real  estate  who  has  paid  more  than  his  share  of  the 
purchase  money,  occupies  the  position  of  a  surety  as  to  such  ex- 

'  Harrisburg  Bank  i'.  German,  3  Pa.  306;    Smith  v.   McLeod,   3  Ired.  Eq. 

St.  300;  but  see  Neff  v.  Miller,  8  Pa.  (Nor.  Car.)  390. 

St.  347.  2  Cullum  v.  Emanuel,  1  Ala.  23,  per 

"Scanland  v.  Settle,  Meig-s  (Tenn.)  Collier,  C.  J. 

169;  Scott  V.  Featherston,  5  La.  An.  *  Marsh  v.  Pike,  10  Paige  Ch.  R  595. 
23 


354  SUBROGATION. 

cess,  and  is  entitled  to  subrogation,  and  his  right  in  that  regard 
Avill  prevail  over  the  right  of  dower  of  the  widow  of  the  other 
joint  purchaser.'  So,  where  one  of  several  princij)als  agreed  to 
pay  a  debt  upon  funds  for  that  jmrpose  being  placed  in  his 
hands  by  the  other  principals,  such  other  principals  occupy 
the  position  of  sureties,  and  if  compelled  to  pay  the  debt 
they  are  entitled  to  subrogation."  The  same  thing  was  held 
where  one  partner  was  obliged  to  pay  the  firm  debts  after  sell- 
ing out  to  the  other  partners,  who  agreed  to  pay  the  same.' 
Although  at  law  one  who  accepts  a  bill  for  the  accommodation 
of  the  drawer  is  regarded  in  favor  of  a  iona  fide  holder  as 
the  principal  debtor,  yet,  as  between  such  acceptor  and  the 
drawer,  the  acceptor  stands  in  the  relation  of  a  surety,  and  in 
equity  is  entitled,  on  payment  of  the  bill,  to  be  subrogated  to 
the  position  of  such  holder  of  the  bill  in  respect  to  any  securi- 
ties of  tlie  drawer  held  by  such  holder  to  secure  the  payment 
thereof.*  Where  a  creditor  has  two  funds  to  which  he  may  re- 
sort for  the  satisfaction  of  his  debt,  the  one  of  which  is  primarily 
and  the  other  only  secondarily  liable  for  the  payment  thereof,  and 
the  creditor  makes  the  money  out  of  the  fund  secondarily  liable, 
the  owner  of  such  fund  stands  in  the  situation  of  a  surety  for  the 
owner  o±  the  primary  fund,  and  is  entitled  to  subrogation.^ 

§  263.  Surety  may  enforce  subrogation  by  suit  in  chancery. 
— ^At  an  early  day,  a  surety  who  paid  a  bond  signed  by  himself 
and  a  principal,  was  held  to  be  entitled  by  suit  in  chancery  to 
comj)el  the  assignment  of  the  bond  to  himself.^  Judgment  was 
recovered  against  a  principal  and  surety,  and  execution  was  issued 
against  the  surety,  who  filed  a  bill  to  compel  the  creditor  to  as- 
sign the  judgment  to  him  upon  payment  of  the  debt.  The  cred- 
itor did  not  wish  to  do  this,  as  he  wanted  the  judgment  extin- 
guished, so  as  to  let  in  some  subsequent  securities  he  had  taken 
from  the  principal.    The  court  of  chancery  ordered  the  judgment 

'  Wheatley's  Heirs  v.   Calhoun,   12  ^  Morgan  v.  Seymour,  1  Reports  in 

Leigh  (Va.)  264.  Chancery,   120  (decided  A.  D.  1640.) 

"  Buchanan  v.  Chxrk,  10  Gratt.  (Va.)  To  a  contrary  effect,  where  the  surety 

164.  offered  to  pay  the  debt,  and  demanded 

'Frow,  Jacobs  &  Co.'s  Estate,  73  Pa.  an  assignment,  see  Gammon  v.  Stone, 

St.  4-59.  1  Vesey,  Sr.  339;  the  Chancellor  there 

*Bank  of  Toronto  v.  Hunter,  4  Bos-  saying  that  the  assignment  was  use- 
worth  (N.  Y.)  646.  less. 

6  Eddy  V.  Traver,  6  Paige,  Ch.  R.  521. 


SUBROGATION   TO    SUITS   COMMENCED    BY    CREDITOR.  355 

to  be  assigned.^  So,  it  lias  been  held  that  a  surety  who  pays  the 
amount  of  the  debt  into  court,  is  entitled  to  a  decree  for  subroga- 
tion. The  court  said:  "A  surety  "who  satisfies  the  debt  for  which 
he  is  liable,  is  entitled  to  have  from  the  creditor  whose  debt  he 
pays,  the  securities  which  such  creditor  has  obtained  from  the 
debtor;  and  if  such  securities  are  not  voluntarily  given  up,  it  is 
the  right  of  the  surety  to  come  to  this  court  to  have  such  securi- 
ty delivered."  ^  Sureties  who  have  paid  the  debt  of  their  princi- 
pal have  a  right  to  file  a  bill  in  chancery  to  set  aside  an  illegal 
sale  of  property  mortgaged  by  their  principal  for  the  payment  of 
the  debt,  and  to  have  the  proceeds  properly  aj^plied.*  After  the 
creditor  has  been  paid,  he  cannot  interfere  to  prevent  a  decree  of 
subrogation  in  favor  of  one  of  several  defendants  in  a  judgment 
who  has  paid  the  debt.  "  His  claim  is  satisfied,  and  he  has  no 
right  to  interfere  with  any  disposition  which  the  court  thinks 
proper  to  make  of  the  judgment  as  between  the  defendants."  ^ 
Certain  sureties  of  a  railroad  company  were  by  decree  of  court 
subrogated  to  the  rights  of  the  creditor  against  the  company,  and 
the  decree  provided  that  unless  the  money  was  paid  within  ten 
days,  the  road  should  not  be  operated.  The  money  was  not  paid 
and  the  road  was  operated  by  a  trustee,  the  company  being  insol- 
vent, and  the  trustee  was  attached  for  contempt.  The  court  said 
the  right  of  subrogation  was  purely  equitable,  and  the  extent  to 
which  it  would  be  exercised  depended  upon  circumstances. 
Whether  it  will  be  extended  to  the  extremest  point  depends  upon 
whether  it  is  necessary  to  the  protection  of  the  sureties.  Stop- 
ping the  operating  of  the  road  would  only  depreciate  it  in  value, 
and  in  no  way  benefit  the  sureties,  and  the  attachment  was 
discharged.* 

§  264.  Hovr  far  surety  will  be  subrogated  to  rights  of  creditor 
in  suits  commenced  by  him  for  recovery  of  the  debt. — If  a  debt  is 
paid  by  a  surety,  and  the  creditor  assigns  to  him  any  collateral 
securety  therefor,  the  debt  w^ll  be  regarded  as  still  subsisting  and 
undischarged,  so  far  as  is  necessary  to  support  the  security.  It 
has  been  held  that  an  attacliment  is  a  collateral  securety  for  the 
payment  of  the  debt,  and  if  the  debt  with  the  action  or  execution 

'Hill  V.  Kelly,  Ridgeway,  Lapp  &  ^ Lowndes  v.   Chisliolm,  2  McCord 

Schoales  (Irish)  265.  Eq.  (So.  Car.)  455. 

^  Goddard  v.  Whyte,  2  GifFard,  449,  *  Springer's  Admr.  v.  Springer,  43 

per  Sir  John  Stuart,  V.  C.  Pa.  St.  518,  per  Lowrie,  C.  J. 

»/n  re  Hewitt,  10  C.  E.  Green  (N.  J.)  210. 


356  SUBROGATION. 

is  assigned  to  a  suret}-,  to  enable  liim  to  avail  himself  of  tlie  prop- 
erty attached,  the  debt  will  be  considered  unpaid  for  that  pur- 
pose only.  "The  rule  that  a  surety  may  take  an  assignment  of 
any  security  for  the  payment  of  the  debt,  which  is  held  by  the  cred- 
itor, unavoidably  implies  an  exception  to  the  general  rule  that  the 
payment  of  a  debt  by  a  co-debtor  discharges  the  other  co-debtors, 
whether  the  debt  rests  in  contract  merely  or  is  merged  in  a 
judgment.  It  is  of  the  nature  of  all  securities  for  a  debt,  to  be  the 
mere  incidents  of  that  debt  and  entirely  dependent  upon  it.  Pay- 
ment of  a  debt  dischargres  all  the  securities  for  it.  The  morto-afje 
either  of  real  or  personal  property  is  discharged  by  payment  of  the 
mortgage  debt  ;  and  in  the  same  way  pledges  are  at  once  at  an 
end  when  tlie  debt  is  paid.  If,  then,  it  was  held  that  by  the  pay- 
ment of  a  debt  by  the  surety  the  debt  was  entirely  discharged, 
then  all  the  collateral  securities  of  the  creditor  must  be  also  dis- 
charged. He  would  no  longer  have  anything  to  assign,  and  the 
equitable  principle  that  the  surety  is  entitled  to  the  benefit  of  all 
the  securities  of  the  creditor,  would  be  entirely  defeated.  But 
it  has  never  been  so  held,  but  the  debt  is  regarded  as  still  unpaid 
and  unsatisfied  so  far,  and  perhaps  no  further,  than  is  necessary 
to  the  preservation  of  the  surety's  interest  in  such  secureties."  ' 
A  verbal  assignment  of  an  attachment  has  been  held  sufficient  in 
such  a  case.^  A  surety  by  recognizance,  who  pays  the  whole 
amount  into  court  when  pressed  with  crown  process,  is  entitled  to 
use  the  crown  secureties  in  order  to  levy  a  moiety  from  his  co- 
surety, and  the  fact  that  he  has  received  indemnity  from  the  princi- 
pal, does  not  interfere  with  such  right,  but  he  must  share  his 
indemnity  with  the  co-surety.^  Principal  and  sureties  ex- 
ecuted a  note,  and  the  principal  died.  The  creditor  stated,  swore 
to,  and  filed  his  account  against  the  estate  of  the  principal,  in  the 
probate  court.  One  of  the  sureties  paid  the  debt,  and  it  was 
held  that  he  was  entitled  to  stand  in  the  place  of  the  creditor  as 
to  the  steps  previously  taken  to  enibrce  the  claim  against  the 
estate  of  the  principal,  and  was  subrogated  to  his  right  to  prose- 
cute the  same  to  an  allowance,  and  to  demand  payment  of  the  ad- 
ministrator, in  the  class  in  which  it  was  placed  by  the  original 

'  Edgerly  J).  Emerson,  23NewHamp.  "  Brewer  v.  Franklin  Mills,  42  New 

555,  per  Bell,  J.     A  decision  to  a  con-  Hamp.  292. 

trary  effect  concerning  a  replevin  bond  ^  Latouche  ».   Pallas,  Hayes  (Irish) 

taken  in  a  suit,  was  rendered  in  Moore  450. 
V.  Campbell,  36  Vt.  361. 


NO  SUBROGATION  WHEN  IT  WOULD  BE  INEQUITABLE.    357 

filing.  Tlie  coart  said  :  "For the  purpose  of  obtaining  indem- 
nity from  the  principal,  he  is  considered  as  at  once  subrogated  to  all 
the  rights,  remedies  and  securities  of  the  creditor,  and  entitled  to  all 
his  liens,  priorities,  and  means  of  payment  against  the  principal."  ' 
But  where  pending  a  suit  on  a  note  against  the  principal  and 
indorser,  jointly,  the  indorser  paid  the  note,  it  w^as  held  that  this 
payment  was  a  bar  to  the  further  prosecution  of  the  suit,  even  at 
the  instance  and  for  the  benefit  of  the  indorser.^ 

§  265.  Subrogation  -wrill  not  be  allowed  when  it  is  inequita- 
ble, or  will  prejudice  rights  of  creditor — Instances. — Subroga- 
tion cannot  be  enforced  when  its  enforcement  would  be  contrary 
to  equity,  for  the  whole  doctrine  is  the  creature  of  equity;  nor 
can  it  be  enforced  to  the  prejudice  of  the  creditor  with  reference 
to  the  debt  for  which  the  surety  is  liable."  Thus,  a  principal 
bought  land  and  took  a  bond  for  its  conveyance,  and  also  gave 
bond  with  surety  for  part  of  the  purchase  money.  The  principal 
sold  the  conveyance  bond  to  another,  and  the  surety  knew  of  the 
sale  at  the  time  thereof,  but  made  no  objection,  and  afterwards 
took  a  mortgage  on  other  property  from  the  principal  for  indem- 
nity, and  suffered  the  principal  to  leave  the  state  with  other  prop- 
erty. Held,  that  the  surety  upon  being  compelled  to  pay  the 
debt,  would  not  be  subrogated  to  the  vendor's  equitable  lien,  and 
thus  get  precedence  of  the  purchaser  of  the  conveyance  bond. 
Having  tacitly  assented  to  its  sale  and  taken  other  security,  he 
was  equitably  estopped  to  claim  subrogation.^  A  and  B  gave  a 
joint  and  several  note  to  C  for  $450,  and  to  secure  the  same  exe- 
cuted to  him  a  mortgage  on  six  pieces  of  land,  three  of  which 
belonged  to  A  and  three  to  B.  The  note  and  mortgage  were 
signed  by  B,  as  the  surety  of  A,  but  this  did  not  appear  from  the 
instruments.  Afterwards  A  mortgaged  one  of  the  same  pieces 
of  land  to  D,  to  secure  $100,  and  D  afterwards  became  the  legal 
holder  of  the  first  note  and  mortgage  by  assignment  from  C. 
The  mortgage  for  $100  was  foreclosed  by  D,  who  then  brought  a 
suit  against  A  and  B  to  foreclose  the  mortgage  given  by  them. 
B  filed  a  cross-bill,  and  claimed  that  upon  payment  of  the  $450 
note  he  was  entitled  to  hold  all  three  pieces  of  the  land  mort- 

'  Braug-ht  v.  Griffith.  16   Iowa,  26,  ^  Stamford  Bank  v.  Benedict,  15  Ct. 

per  Dillon  J.  437. 

^  Griffin  v.  Hampton,  21  Ga.  198.  "Henley  v.   Stemmons,  4  B.  Men. 

(Ky.)  131. 


358  SUBKOGATION. 

gained  by  A,  as  his  indemnity,  and  that  the  subsequent  mortgage 
to  secure  $100,  should  be  subject  to  the  prior  mortgage,  to  which 
he  claimed  to  be  subrogated.  D  did  not  ap23ear  to  have  had  notice 
that  B  was  a  surety.  It  was  held  that  B  was  not  entitled  to  sub- 
rogation, on  the  ground  that  D  had  no  notice  of  his  rights  as 
surety,  and  would,  without  fault  on  his  part,  be  prejudiced  if  subro- 
gation was  allowed.^  A  party  sold  a  tract  of  land  and  took  three 
notes  of  the  vendee  for  the  purcliase  money,  taking  no  other  security 
than  retaining  his  vendors  lien.  AjDprehending  that  the  land,  if 
sold,  would  not  pay  the  notes,  the  vendor  instituted  on  the  second 
note  an  attachment  suit  against  the  purchaser,  and  levied  on  certain 
horses,  to  secure  the  release  of  which  the  purchaser  gave  a  bond 
with' sureties.  Judgment  was  rendered  for  the  plaintiff  in  the 
attachment  suit.  Afterwards  the  vendor  obtained  judgment  on 
the  third  note,  and  sold  the  land  and  applied  the  j^roceeds  to  the 
•payment  of  the  tlie  third  note.  The  sureties  in  the  bond  given 
in  the  attachment  suit,  filed  a  bill  claiming  to  be  subrogated  to 
the  lien  of  the  judgment  obtained  in  the  attachment  suit,  and  to 
have  the  proceeds  of  the  sale  of  the  land  applied  to  the  payment 
of  that  judgment,  claiming  that  it  was  a  lien  on  the  land  prior  to 
the  lien  of  the  judgment  obtained  on  the  third  note.  Held,  they 
were  not  entitled  to  the  relief,  because  to  grant  it  would  not  be 
to  place  them  in  the  position  of  the  creditor  with  reference  to 
the  liens,  but  to  take  from  the  creditor  a  security  which  he  had 
obtained,  and  cause  him  to  lose  the  debt.^  A  executed  a  mort- 
gage to  secure  several  notes  due  from  him  to  B,  and  B  assigned  all 
the  notes,  except  the  first  one,  to  C.  Afterwards  A  sold  the 
mortgaged  premises  to  D,  who  agreed  to  pay  all  the  notes,  but 
did  not,  and  the  mortgage  was  foreclosed.  A  paid  B  the  note 
held  by  him,  with  the  understanding  that  such  payment  should 
not  extinguish  the  note,  and  had  it  transferred  to  a  third  party. 
The  mortgaged  premises  did  not  bring  enough  to  pay  all  the 
notes,  and  the  proceeds  were  ordered  to  be  paid  on  the  notes  in 
the  order  of  their  maturity.  A  claimed  that  by  means  of  the 
principles  applicable  to   subrogation,  the  note  he  had  paid  to  B 

'  Orvis  V.  Newell.  17  Ct.  97.  that  interest,  though  subordinate  to 

-  Crump,  V.   McMurtry,  8  Mo.  408.  that  of  the  creditor,  is  prior  in  date  to 

Holding  that  a  surety  will  not  be  subro-  the  undertaking  of  the  surety,  see  Far- 

gatedso  as  to  defeat  an  interest  acquir-  mers  &  Drovers'  Bank  v.  Sherley,  12 

ed  and  held  by  a  third  person,  when  Bush  (Ky.)  304. 


NO    SUBROGATION    TILL    WHOLE    DEBT    PAID.  359 

should  be  first  paid  from  siicli  proceeds.  Held,  tlie  claim  was  not 
well  founded.  Althougli  by  the  transaction  A  occupied  the  posi- 
tion of  a  surety  for  D,  yet  lie  was  a  principal  as  to  C,  and  the 
proceeds  of  the  mortgage  must  be  first  applied  to  paying  the 
notes  held  by  C.^  A  county  treasurer  gave  bond  with  sureties  in 
the  sum  of  7,000?.,  and  became  a  defaulter  to  the  extent  of  18,000?. 
The  sureties  filed  a  bill,  claiming  that  upon  payment  of  the  7,000?. 
they  were  entitled  to  sue  on  the  bond,  and  stand  in  the  place  of 
the  creditor  for  that  sum.  The  court  said  tliat  if  the  crown  had 
been  fully  paid  the  subrogation  would  have  been  decreed,  for  the 
crown  would  then  have  been  a  mere  trustee,  but  as  a  large  bal- 
ance remained  due  the  crown  the  subrogation  would  not  be  made. 
"If  the  debts  due  to  the  crown  and  a  subject  be  equal  in  degree, 
tlie  prerogative  of  the  crown  gives  priority  to  the  former."  ^  Un- 
der certain  peculiar  circumstances,  where  it  would  be  inequitable 
to  refuse  it,  subrogation  will  be  allowed,  although  it  prejudice 
the  claim  of  the  creditor  against  the  principal.  Thus  a  bond 
with  surety  in  the  penal  sum  of  10,000?.  was  conditioned  for  the 
payment  of  all  such  sums  as  should  be  advanced  to  the  principal. 
20,000?.  were  advanced  to  the  principal,  who  then  became  bank- 
rupt. The  surety  paid  the  10,000?.,  and  filed  a  petition  to  be  sub- 
rogated to  the  rights  of  the  creditor  against  the  estate  of  the 
principal,  wliere  the  claim  for  20,000?.  had  been  proved.  Held, 
he  was  entitled  to.be  subrogated  for  the  10,000?.  paid  by  him,  and 
to  have  precedence  out  of  the  bankrupt's  eflfects  over  the  other 
10,000?.  due  the  creditors.  The  sureties  had  a  right  (although  the 
bond  was  conditioned  for  the  payment  of  all  advances)  to  suppose 
that  the  advances  would  not  exceed  10,000?.,  the  penalty  of  the 
bond.  The  Chancellor  said:  "  I  think  the  bankers  (creditors)  are 
not  entitled  in  equity  to  say  as  against  the  suretj',  that  their  de- 
mand is  more  than  10,000?.,  the  amount  of  the  bond  he  has  given, 
upon  which  he  would  be  jyrima  facie  entitled  to  stand  in  their 
place  ;  as  to  the  residue  of  their  debt,  they  ought  to  be  so  con- 
sidered, if  I  may  so  express  it,  as  their  own  insurers." ' 

§  266.  Surety  not  entitled  to  subrogation  until  the  -whole 
debt  is  paid. — As  a  general  rule,  subrogation  cannot  be  enforced 
until  the  whole  debt  is  paid  to  the  creditor.     Part  may  be  paid 

^Massie  17.  Mann,  17  Iowa,  131.  ^ Ex  parte,    Rusliforth,    10  Vese'y, 

*The  Queen  v.  O'Callaglian,  1  Irish,      409,  per  Ld.  Eldon,  C . 
Eq.  R.  439. 


360  SUBEOGATION. 

by  tlie  principal  and  part  by  tbe  creditor,  and  tlie  surety  tlien  be 
entitled  to  subrogation,  but  the  entire  debt  must  be  extinguished 
before  subrogation  can  take  place.  It  would  not  subserve  the 
ends  of  justice  to  consider  the  assignment  of  an  entire  debt  to  a 
surety  as  effected  b}^  operation  of  law,  where  he  had  paid  but  a 
part  of  it  and  still  owed  a  balance  to  the  creditor,  and  a  coui^t  of 
chancery  would  not  countenance  such  an  anomaly  as  a,  2?ro  tanto 
assignment,  the  effects  of  vvhich  could  only  be  to  give  distinct 
interests  in  the  same  debt  to  both  creditor  and  surety.  Until  the 
creditor  is  fully  satisfied,  there  cannot  usually  be  any  interference 
with  his  rights  or  his  securities,  which  might  even  by  bare  possi- 
bility prejudice  or  embarrass  him  in  any  way  in  the  collection  of  the 
residue  of  his  claim, ^  A  surety  who  has  paid  interest  on  a  note 
secured  by  mortgage  where  the  principal  remains  unpaid,  is  not 
entitled  to  subrogation  as  to  such  payments.^  But  a  surety  for  a 
mortgaigor  who  pays  part  of  the  mortgage,  is,  as  against  the  mort- 
gagor, entitled  to  a  charge  on  the  mortgaged  estate  in  a  suit  brought 
by  the  mortgagee  to  foreclose  a  mortgage.^  A  creditor  who 
holds,  without  special  stipulations  as  to  its  apj)lication,  security 
for  various  notes  due  from  his  debtor,  some  of  which  bear  the 
name  of  sureties,  may,  in  case  of  the  insolvency  of  the  principal 
and  of  some  of  the  sureties,  apply  the  same  towards  the  payment 
of  such  of  the  notes  as  may  be  necessary  for  his  own  protection, 
and  solvent  sureties  upon  other  of  the  notes  cannot  avail  them- 
selves thereof  in  any  way,  in  equity,  without  paying,  or  offering 
to  pay,  the  whole  of  the  notes  for  which  the  security  was  given. 
Where  a  surety  in  such  a  case  sought  relief,  the  court  said :  "  It 
is  obvious,  that  in  order  to  become  entitled  to  such  substitution, 
he  must  first  pay  the  whole  of  the  debt  or  debts  for  which  the 
property  is  mortgaged  or  the  collateral  security  is  given,  to  the 
creditor,  for  it  would  be  manifestly  unjust  and  a  plain  violation 
of  his  rights,  to  compel  him  to  relinquish  any  portion  of  the 
property  before  the  obligation,  for  the  performance  of  which  it 

'  Hollingswoi-th  v.  Floyd,  2  Har.  &  v.  Leg-gett,  48  Miss.  139.     To  contrary 

Gill.    (Md.)  87;    Kyner   v.   Kyner,  6  effect,    see    Williams    v.   Tipton,    \ 

Watts  (Pa.)  221;  Receivers  of  N.  J.  (Humph.)  Teun.  66. 

Midland  R.  R.  Co.  v.  Wortendyke,  27  « Gannett  v.  Blodgett,  39  New  Hamp. 

NewJer.  Eq.  658;   Bank  of  Pennsyl-  150;  Neptune  Ins.  Co.   v.   Dorsey,    3 

vaniai;.  Potius,  10  Watts  (Pa.)  148;  Md.  Ch.  R.  334;   Swan  v.  Patterson,  7 

Swan   V.  Patterson,   7   Md.    164;  ex  Md.  164. 

parie  Rushforth,  10  Vesey,  409;  Magee  ^Gedye  t\  Matson,  25Beavan,  310. 


SUBROGATION    AFTER    STATUTE    OF    LIMITATIONS    HAS   RUN.     301 

was  conveyed  to  liim  as  security,  had  been  fully  kept  and  com- 
plied with."  ^  Where  a  trust  fund  was  provided  for  the  payment 
of  several  notes  of  a  principal,  on  one  of  which  was  a  suretv, 
and  the  surety  paid  such  note,  it  was  held  he  was  entitled  to  be 
subrogated  to  the  rights  of  the  creditor,  and  to  share  jp^'o  rata  in 
the  proceeds  of  the  trust  fund,  the  decision  being  put  upon  the 
ground  that  such  were  the  express  terms  of  the  trust.^  Suit 
having  been  brought  against  principal  and  sureties  on  a  city 
treasurer's  bond,  the  sureties  claimed  a  set-off,  and  also  filed  a 
cross-petition,  claiming  to  be  subrogated  to  certain  rights  of  the 
city  against  a  bank.  Judgment  was  rendered  against  the  sure- 
ties, but  subrogation  was  denied  them,  and  they  then  paid  the 
judgment,  and  appealed  from  the  order  denying  them  subroga- 
tion. It  was  claimed  that  the  sureties  were  not  entitled  to  sub- 
rogation till  they  had  paid  tlie  debt,  and  as  they  had  not  paid  it 
when  the  decree  was  rendered,  the  decree  was  right.  The  coui-t 
said:  "All  this  is  answered  by  the  single  proposition  that  the 
power  of  a  court  of  equity  is  not  limited  to  settling  the  rights 
of  parties  upon  what  has  been  done  in  the  past,  but  it  reaches 
forth  and  declares  their  duties  and  rights  for  the  future,  and  in 
the  exercise  of  this  latter  power  it  should  have  decreed  that  when 
the  sureties  paid  the  debt  of  their  principal,  they  should  be  sub- 
rogated to  the  rights  of  the  creditor."  ^ 

§  267.  Surety  not  entitled  to  subrogation  after  statute  of  lim- 
itation has  run,  nor  if  he  take  separate  indemnity. — Where  a 
surety  who  has  paid  the  debt  does  no  act  before  his  claim  Is 
barred  at  law  by  the  statute  of  limitations,  manifesting  his  inten- 
tion to  put  himself  in  the  place  of  the  original  creditor,  and 
thereby  subrogating  himself  to  the  creditor's  rights,  equity  will 
not  subrogate  him  to  those  rights.*  If  the  surety,  knowing  of  the 
existence  of  a  mortgage  given  by  the  princij)al  for  the  payment 
of  a  debt,  take  a  distinct  securety  for  his  indemnity  from  the 
principal,  it  has  been  held  that  he  thereby  waives  his  right  of 
subrogation  to  the  mortgage  held  by  the  principal.  In  such  a 
case  the  court  said:     "He   must  j)roceed  under  one  or   other 

'Wilcox    V.    Fairliaven     Bank,    7  ^Rittenliouse  v.  Levering,  6  Watts 

Allen,  270,  per  Merrick,  J.  &  Sergr.  (Pa.)  190;  Joyce  v.  Joyce,  1 

"Allison  r.   Sutlierlin,  50  Mo.  274.  Bush  (Ky.)  474;    Fink  v.  Mahaffy,  8 

^  City  of  Keokuk  v.  Love,  31  Iowa,  Watts  (Pa.)  384;   Bank  of  Pennsyl- 

119,  per  Cole,  J.  vania  v.  Potius,  10  Watts  (Pa.)  148. 


362  SUBROGATION. 

of  the  two  riVlits  which  he  clahiis.  If  he  had  bound  himself  to 
pay  the  mortgage  and  liad  done  so,  he  would  tlien  have  been  en- 
titled to  the  benefit  of  the  mortgage.  He  has  not  done  so.  He 
has  bargained  by  a  separate  iustrunient  for  an  indemnity,  which 
is  perfectly  distinct.  '-  If  a  surety  pay  off  the  mortgage,  he  is 
entitled  to  the  benefit  of  all  the  securities.  But  here  the  plain- 
tiff has  contracted  with  the  mortgagor,  for  whom  he  is  surety,  that 
he  should  receive  a  particular  species  of  indemnity  if  he  pay  ofi' 
any  part  of  the  principal  or  interest  of  the  mortgage.  That  in- 
demnity he  is  entitled  to  and  not  to  the  benefit  of  the  mortgage 
paid  ofi"."  *  It  has  however  been  held  that  a  surety  who  has  taken 
a  particular  indenmity  from  the  principal,  will  upon  payment  of 
the  debt  be  entitled  to  subrogation  to  securities  which  the  cred- 
itor acquired  after  the  taking  of  such  indemnity.^ 

§  2G8.  When  surety  who  becomes  such  during  prosecution  of 
remedy  against  principal,  not  entitled  to  subrogation. — A  surety 
who  was  not  originallj^  bound  for  the  debt,  but  wdio  comes  in 
during  the  prosecution  of  a  remedy  for  the  debt  against  the  prin- 
cij)al,  cannot,  by  subrogation,  obtain  a  preference  over  creditors 
of  the  principal  whose  liens  attached  before  the  surety  became 
bound.  Thus,  three  notes,  payable  annually,  were  executed  and 
a  lien  retained  on  land  to  secure  them.  Judgment  was  obtained 
on  the  first  note,  which  was  replevied  (stayed).  The  surety  in  the 
replevin  bond  paid  it,  and  it  was  assigned  to  him.  The  holder 
of  the  third  note  brought  suit  to  enforce  the  lien  on  the  land,  and 
it  was  held  that  his  lien  was  superior  to  any  right  which  the 
surety  could  obtain  by  means  of  subrogation.^  The  same  thing 
was  held  where  a  judgment  had  been  obtained  against  a  principal 
who  had  given  a  mortgage  on  land  to  secure  the  debt,  and  he  gave 
an  injunction  bond,  with  surety,  to  restrain  the  collection  of  the 
judgment.  The  court  said:  "  AYe  are  decidedly  of  the  opinion 
that  a  surety  who  first  comes  in  as  a  surety  in  an  obligation  inci- 
dental to  the  prosecution  of  the  legal  remedy  against  the  person 

'  Cooper  i\  Jenkins,  32  Beavan,  337,  where  the  surety  became  such  for  the 

per  Sir  John  Romilly,  M  R. ;  Com-  the  purpose  of  staying'  an  execution, 

■well's  appeal,  7  Watts  &  Serg.  (Pa.)  see   Armstrong's  Appeal,  5  Watts  «S: 

305.  Serg.   (Pa.)  352.     For  an  application 

'  Lake  v.  Brutton,  8  De  Gex,  Macn.  of  the  same  principle  to  surety  on  notes 

&  G^r.  440.  for  interest  clue    on    mortgage,    see 

*  Bank  of  Hopkinsville  v.  Rudy,  2  Swan  v.  Patterson,  7  Md.  164. 
Bush  (Ky.)  326.    To  the  same  effect, 


SUBROGATION    AS    BETWEEN    CO-SUKETIES.  363 

of  tlie  debtor,  is  prima  facie  to  be  considered  as  trusting  to  liis 
principal  only,  for  whom  alone  lie  is  surety,  that  upon  his  paying 
the  debt,  he  is  entitled  to  stand  in  the  creditor's  place  only  as  to 
his  remedies  against  the  person  and  property  of  the  principal, 
and  that  as  to  any  prior  surety,  or  any  prior  interest  in  the  prop- 
erty which  may  be  under  pledge,  he  must  occupy  the  place  of  the 
debtor."  '  But  where  a  judgment  was  recovered  against  princi- 
pal and  surety,  upon  which  a  ca.  sa.  was  issued,  and  the  surety 
arrested,  and  he  turned  out  certain  slaves  to  procure  the  discharge 
of  his  body  from  custody,  and  then  gave  a  forthcoming  bond  for 
the  slaves,  with  A  as  surety,  which  bond  was  forfeited,  and  A  ht^d 
the  debt  to  pay,  it  was  held  that  A  was  entitled  to  subrogation  to 
the  creditor's  rights  in  the  original  judgment,  and  could  enforce 
the  lien  of  that  judgment  against  land  of  the  principal  bound  by 
the  sarae.^  Judgment  was  recovered  against  A  and  B,  which  be- 
came a  lien  on  the  land  of  A.  Afterwards,  B  alone  prosecuted  a 
writ  of  error  from  the  judgment,  and  gave  C  as  surety  on  his 
error  bond.  The  judgment  was  affirmed,  and  judgment  was  ren- 
dered against  B  and  0  in  the  Supreme  Court,  which  C  had  to 
pay:  Held,  he  was  entitled  to  be  subrogated  to  the  lien  of  the 
judgment  creditor  against  the  land  of  A.  The  judgment  below 
remained  in  force  and  unsatisfied,  and  A  was  bound  for  it  when 
it  was  affirmed  as  much  as  B,  and  C  having  discharged  it,  was 
entitled  to  subrogation.^ 

§  269.  Surety  who  pays  entitled  to  subrogation  to  creditor's 
rights  against  co-surety. — A  surety  who  pays  the  debt  for  which 
he  and  a  co-surety  are  liable,  will  be  subrogated  to  the  rights  of 
the  creditor  against  the  co-surety  to  the  same  extent  that  he  would 
be  subrogated  to  the  rights  of  the  creditor  against  the  principal. 
In  holding  this  principle,  a  most  eminent  judge  said:  "  Where  a 
person  has  paid  money  for  which  others  are  responsible,  the  equi- 
table claim  which  sudi  payment  gives  him  on  those  who  were  so 
responsible,  shall  be  clothed  with  the  legal  garb  with  which  the 
contract  he  has  discharged  was  invested,  and  he  shall  be  substitu- 
ted, to  every  equitable  intent  and  purpose,  in  the  place  of  the 
creditor  whose  claim  he  has  discharged.     This  principle  of  sub- 

^  Patterson  v.   Poiie,  5  Dana  (Ky.)  ^  Leake  v.  Ferguson,  2  Gratt.  (Va.) 

241,  per  Marshall,  J.     But  see  Rod-  419. 

gers    V.   M'Cluers'  Admr.    4    Gratt.  ^Taul  tJ.  Epperson,  38  Texas,  492. 
(Va.)  81. 


36-4  SUBROGATION. 

stitution  is  completely  established  in  the  books,  and  being  estab- 
lished, it  must  ajiply  to  all  ])ersons  M'ho  are  parties  to  the  securi- 
ty, so  far  as  is  equitable.  The  cases  suppose  the  surety  to  stand 
in  the  jilace  of  the  creditor,  as  completely  as  if  the  instrument 
liad  been  transferred  to  him,  or  to  a  trustee  for  his  use.  Under 
this  supposition,  he  would  be  at  full  liberty  to  proceed  against 
every  person  bound  by  the  instrument.  Equity  would  undoubt- 
edly restrain  him  from  obtaining  more  from  any  individual  thanf 
the  just  proportion  of  that  individual;  but  to  that  extent  his  claim 
upon  his  co-surety  is  precisely  as  valid  as  upon  his  principal."  ^ 
Where  two  sureties  signed  a  joint  and  several  promissory  note, 
under  seal,  in  which  there  was  a  warrant  to  confess  judgment, 
and  one  of  them  paid  it,  and  the  word  "  paid "  was  written 
across  its  face,  it  was  held  that  the  surety  making  such  payment 
might  have  judgment  entered  on  the  note  in  the  name  of  the 
payee  to  his  use,  and  have  execution  thereon  against  his  co-surety 
for  his  proportion.  The  court  said:  "An  intent  to  prevent  the 
extinguishment  of  the  debt  will  be  jDi'esumed,  whenever  it  is  the 
interest  of  the  paying  surety,  it  be  kept  alive.  *  A  surety 
who  pays  his  principal's  debt  is  entitled  to  be  subrogated  to  all 
the  rights  and  remedies  of  the  creditor  against  his  co-surety  in 
the  same  manner  as  against  the  principal.  An  actual  assignment 
is  unnecessary.  The  right  of  substitution  is  the  substantial 
thing,  the  actual  substitution  is  unimportant.  The  right  of  sub- 
stitution being  shown,  and  the  surety  having  paid  the  debt,  he 
succeeds  by  operation  of  law  to  the  rights  of  the  creditor."  ^  A 
joint  judgment  was  rendered  against  0  and  H,  who  were  the 
sureties  of  K.  H  replevied  (stayed)  the  judgment,  with  M  and 
others  as  sureties,  and  M  had  the  debt  to  pay.  Held,  M  was  not 
the  surety  of  C,  who  did  not  join  in  the  replevin,  but  M  having 
paid  the  debt  of  H,  for  which  C  was  co-surety  with  H,  if  H  was 
entitled  to  contribution  from  C,  M  would  be  subrogated  to  that 
right,  and  could,  through  that  means,  recover  from  C  A  surety 
obtained  from  his  principal  an  assignment  of  a  mortgage  as  an 

^  Per  Marshall,  C.  J.,  in  Lidclerdale  409;  contra.  Bank  v.  Adger,  2  Hill  Eq. 

V.Robinson,   2  Brockenbrou^^h,    159;  (So.  Car.)  262. 

holding  the  same  view,  see  Hess'  Es-  *  Wright  r.  Grover  &  Baker  S.  M. 

tate,  69  Pa.  St.  272;  Howell  v.  Reams,  Co.,  82  Pa.  St.  80,  per  Mercur,  J. 

73  Nor.  Car.  391;    Croft  v.  Moore,  9  ^Crow  v.  Murphy,  12  B.  Mon.  (Ky.) 

Watts  (Pa.)   451;    Bun-ows    v.    Mc-  444. 
Whann,  1  Desaussure  Eq.    (So.  Car.) 


SrBROGATIOX    OF   SURETY    WHO    PAYS   JUDGMENT.  305 

iiidemDitj,  from  which  he  received  a  certain  sum.  The  lands  of 
his  co-surety  were  sold  to  pay  tlie  debt  of  the  princijDaL  Held, 
the  creditors  of  such  co-surety,  whose  liens  were  disappointed  by 
such  sale,  had  the  right,  with  the  consent  of  the  co-surety,  to  be 
subrogated  to  the  judgment  held  by  the  original  creditor  against 
the  surety  to  the  extent  of  one  half  of  the  amount  thus  received  by 
him  from  the  mortgage,  and  applied  to  the  payment  of  the  joint 
liabilities  of  the  sureties.^  Judgment  was  recovered  against  three 
co-sureties,  and  execution  was  levied  on  land  belonging  to  each 
of  them.  Two  of  them  paid  the  judgment  and  filed  a  bill  to  be 
subrogated  to  the  lien  of  the  levy  against  the  land  of  the  third. 
Held,  they  were  entitled  to  the  subrogation.  The  Court  said  the 
judgment  was  not  extinguished  by  the  payment.  The  English 
rule  was  different,  but  the  American  and  better  rule  was  that  the 
payment  did  not  extinguish  the  judgment  unless  such  was  the 
intention  of  those  who  paid.  It  was  rather  a  purchase  of  the 
judgment,  and  would  be  so  treated  where  equity  required. 
"Where  the  intention  with  which  the  payment  is  made  requires 
that  the  security  should  survive  either  generally  or  against  par- 
ticular persons,  and  the  situation  and  relation  of  the  parties  will 
fairly  admit  it,  a  court  of  equity  will  generally,  in  this  country, 
respect  the  intention  and  treat  the  security  as  in  being  to  the 
end  designed,  and  recognize  and  enforce  the  right  of  subro^-a- 
tion."  '^ 

§  270.  Cases  holding  surety  who  pays  amount  of  judgment 
entitled  to  subrogation  thereto  -without  assignment. — The  rule 
that  a  surety  who  pays  the  debt  for  which  he  is  bound  is  entitled 
to  subrogation  to  the  rights  of  the  creditor  to  some  extent,  is 
recognized  by  all  the  British  and  American  courts,  but  there  is 
great  conflict  among  the  cases  as  to  the  extent  to  which  subroim- 
tion  will  be  carried.  One  of  the  most  fruitful  sources  of  such 
conflict,  is  whether  the  payment  by  a  surety  of  the  amount  of  a 
judgment  rendered  against  the  principal  for  the  debt,  extino-uish- 
ing  the  judgment,  so  as  to  cut  ofl"  the  surety  from  a  right  to  sub- 
rogation thereto.  If  the  surety  makes  such  payment  with  the 
intention  of  extinguishing  the  judgment,  the  payment  will  have 
that  efiect.  But  if  nothing  appears  as  to  the  intent  with  which 
the  payment  is  made,  the  better  opinion  seems  to  be  that  the 

1  Moore  v.  Bray,  10  Pa.  St.  519.  *  Smith  v.  Rumsey,  33  Mich.  183,  per 

Graves,  J. 


3G6  SUBROGATION. 

judgment  is  discharged  so  far  as  any  benefits  which  the  creditor 
miglit  otherwise  personally  derive  tlierefrom  is  concerned,  but  is 
kept  alive  as  between  all  parties  thereto,  for  the  purpose  of  en- 
forcing tlie  rights  of  the  surety,  and  it  will  be  presumed  that  it 
was  the  intention  of  the  surety  to  keep  tlie  judgment  alive,  so 
that  he  may  be  subrogated  to  the  creditor's  rights  thereunder,^ 
In  such  case  no  assignment  nor  agreement  for  assignment  of  the 
judgment  is  necessary,  as  the  rights  of  the  surety  result  from  the 
operation  of  law.''  N^or  does  it  make  any  diiference  tiiat  tlie 
surety,  when  he  paid,  did  not  know  that  there  was  any  right  of 
subrogation.'  The  levy  of  an  execution  having  created  an  in- 
cumbrance on  the  estate  of  a  person  of  unsound  mind,  his  com- 
mittee enjoined  the  collection  of  the  judgment.  The  injunction 
was  dissolved,  and  the  sureties  in  the  injunction  bond  had  to  pay 
the  debt.  Held,  the  committee  did  not  lose  its  right  of  priority 
by  enjoining  the  debt  in  good  faith,  and  the  sureties  in  the  in- 
junction bond  had  a  right  to  be  subrogated  to  the  priority  which 
the  committee  would  have  had  if  it  had  paid  the  execution.* 
Judgment  was  recovered  against  principal  and  surety,  after  which 
the  principal  gave  absolute  bail,  and  such  bail  was  afterwards 
sued,  and  judgment  was  obtained  against  him  for  the  debt.  The 
surety  paid  part  of  the  first  judgment.  Held,  he  was  entitled  to 
be  subrogated  to  the  judgment  against  the  bail,  who  had  "  inter- 
posed to  procure  a  personal  advantage  to  the  23rincipal,  and  to 
the  detriment  of  the  surety,  who  might  perhaps  have  been  exon- 
erated had  the  proceedings  not  been  stayed  against  the  princi- 
2)al."  ^  Where  separate  judgments  were  recovered  against  prin- 
cipal and  surety,  and  land  of  the  jDrincipal  was  levied  on,  and  the 
surety  paid  the  judgment  against  himself,  it  was  held  that  such 
payment  operated  in  law  and  equity  as  an  assignment  of  the 
judgment  against  the  principal  to  the  surety,  and  that  the  sure- 
ty might  proceed  on  such  judgment  for  his  own  benefit."     So, 

'  Neilson  v.   Fry,    16  Ohio  St.  552;  *  Salter  v.  Salter's  Creditors,  6  Bush 

Eddy  V.  Traver,  6  Paige   Ch.  R.  521;  (Ky.)  624. 

Hill  V.   Manser,   11  Gratt.  (Va.)  522;  «  Burns  v.  Huntingdon  Bank,  1  Pen. 

Merryman  v.   ITie  State,  5  Han-is  &  &  Watts  (Pa.)  895,  per  Gibson,  C.  J. 

Johns.  (Md.)  423;    Richter    v.    Cum-  «Sotherent;.  Reed,  4  Harris  &  Johns, 

mings,  60  Pa.  St.  441.  (Md.)  307;  to  similar  effect,  and  as  to 

^Fleming  r.  Beaver,  2  Rawle  (Pa.)  right  of  surety  to  file  bill  to  subject 

^28-  equitable  estate  of  principal,  see  Lyon 

2  Dempsey  v.  Bush,  18  Ohio  St.  376.  v.  Boiling,  9  Ala.  463;    contra,  Dow- 


PAYING    JUDGMENT   AND    TAKING    ASSIGNMENT.  367 

where  separate  judgments  for  the  same  debt  were  recovered 
against  principal  and  surety,  and  the  surety  paid  the  judgment 
against  himself,  and  thereupon  the  sheriff  entered  satisfaction  on 
both  executions,  it  was  held  that  the  surety  would  be  allowed  to  va- 
cate the  entry  of  satisfaction  on  the  execution  against  the  principal, 
and  to  set  up  the  judgment  against  him  as  a  lien  on  his  estate.' 

§  271.  Cases  holding  that  surety  who  pays  amount  of  judg- 
ment and  takes  assignment  thereof  can  enforce  judgment. — If 
the  surety,  at  the  time  he  pays  the  amount  of  a  judgment  against 
the  principal,  take  or  stipulate  for  an  assignment  thereof,  his  in- 
tention not  to  extinguish  the  same  is  thereby  manifest.  And  in 
such  case,  where  the  judgment  was  jointly  against  the  principal  and 
surety,  it  was  held  that  the  judgment  was  not  extinguished,  but 
that  the  surety  should,  as  a  judgment  creditor,  have  the  benefit 
thereof  against  the  estate  of  the  principal.^  The  same  thing  was 
held  where  separate  judgments  for  the  same  debt  were  rendered 
against  principal  and  surety,  and  the  surety  at  the  time  of  pay- 
ing the  judgment  stipulated  for,  and  afterwards  obtained,  an  as- 
signment to  himself  of  the  judgment  against  the  principal.^ 
Separate  suits  were  brought  against  the  maker  and  indorser  of  a 
note,  and  the  indorser  paid  the  amount  due,  upon  an  agreement 
between  him  and  the  holder  that  the  suit  against  the  maker 
should  proceed  for  the  benefit  of  the  indorser.  Held,  the  maker 
could  not  in  the  suit  against  him  avail  himself  of  the  payment 
thus  made  by  the  indorser.'  Where  there  was  a  judgment 
against  principal  and  surety,  and  the  creditor  insisted  on  holding 
his  judgment  and  enforcing  a  creditor's  bill  founded  upon  it,  it 
was  held  that  equity  would  compel  him  to  receive  payment  of  the 
debt  from  the  surety  and  to  assign  the  judgment  to  the  surety.* 

biggen  V.  BouiTie,  2  Younge  &  Collyer  '■' Neal  v.   Nash,   23  Ohio  St.   483; 

(Exchequer)  462;  where  it  was  held,  Goodyear  v.  Watson,  14  Barb.  (N.  Y.) 

in  such  a  case,  that  the  judgment  was  481;  Norris  v.  Ham,  R.  M.  Charlton 

extinguished  by  the  payment,  and  a  (Ga.)  267;  Norris  v.  Evans.  2  B.  Mon. 

court  of  equity  refused  to  compel  an  (Ky.)  84. 

assignment  thereof.  *  Thomson  v.  Palmer,  3  Richardson 

1  Perkins  v.  Kershaw,  1  Hill  Eq.  (So.  Eq.  (So.  Car.)  139. 

Car.)  344;  co«ira,  Sherwood  t;.  Collier,  ^Mechanic's   Bank    v.    Hazard,  13 

3  Dev.  Law  (Nor.  Car.)  380;  where  in  Johns  353. 

a  similar  case  it  was  held  the  judg-  ^  McDougald  v.   Dougherty,  14  Ga. 

ment  against  the  principal  was  extin-  674. 
guished  by  the  payment  of  the  judg- 
ment against  the  surety. 


368  SDBKOGATIOX. 

§  272.  Cases  holding  that  payment  of  amount  of  judgment 
by  surety  extinguishes   it,    and    prevents    subrogation    thereto. — 

On  the  other  hand,  there  is  a  class  of  cases  which  liold  that 
where  a  judgment  is  rendered  against  principal  and  surety,  pay- 
ment of  the  amount  by  the  surety  extinguishes  the  judgment, 
and  tlie  surety  can  thereafter  derive  no  benefits  therefrom  by 
means  of  subrogation.'  This  doctrine  has  been  carried  to  the  ex- 
tent of  holding  that  the  surety  who  paid  a  joint  judgment  against 
himself  and  his  principal  extinguished  it,  even  though  he  did  not 
intend  to  do  so,  and  took  an  assignment  of  it  to  himself.  The 
court  said  that  the  only  way  he  could  keep  the  judgment  alive 
was  to  have  it  assigned  to  some  third  person.^  Where  a  judg- 
ment was  recovered  and  execution  issued  against  the  maker  and 
several  indorsers  of  a  note,  among  whom  was  E,  a  mere  accom- 
modation indorser,  who  paid  the  judgment,  it  was  held  that  a 
court  of  law  had  no  power  to  permit  him  to  sue  out  execution 
against  the  parties  to  the  judgment,  who  stood  prior  to  him  on 
the  note.  Payment  extinguished  the  judgment  at  law,  and  he 
could  only  be  subrogated,  if  at  all,  in  equity.'  Principal  and 
sureties  in  a  promissory  note  were  sued  jointly,  and  judgment 
and  jl.  fa.  went  against  them  jointly.  The  sureties  paid  the  fi. 
fa.,  and  the  sheriff  made  an  entry  to  that  effect  on  it.  Held, 
the  sureties  had  no  right  to  have  the  fi.  fa.  returned  and  take 
out  a  ca,  sa.  and  arrest  the  principal." 

§  273.  Whether  surety  -who  pays  specialty  debt  of  principal 
entitled  to  rank  as  specialty  creditor. — Although  there  is  conflict 
of  authority  on  this  point  also,  the  prevailing  and  better  opinion 
is  that  the  surety  who  pays  the  sealed  obligation  of  his  principal, 
does  not,  in  the  absence  of  an  intention  to  that  effect,  thereby 
extinguish  the  same  and  become  a  simple  contract  creditor  of 
the  principal,  but  that  he  is,  by  reason  of  such  payment,  subro- 
gated to  the  rights  of  the  creditor  in  the  sealed  instrument,  and 
entitled  to  rank  as  a  specialty  creditor  of  the  principal.  In 
holding  this  principle,  an  able  court  said  that  the  civil  law,  the 
old   English   authorities,  and   the   great   weight    of   American 

'  Laval  V.  Rowley,  17  Ind.  36;   Mor-  (Nor.  Car.)  3G6.    To  similar  effect,  see 

rison  V.  Marvin,  6  Ala.  797;  State  v.  Presslar  v.  Stallworth,  37  Ala.  402. 

Miller,  5  Blackf.  (Ind.)  381;  McKeetJ.  ^  Ontario  Bank  v.   Walker,    1  HHl 

Amonett.  6  La.  An.  207;  Dinkins  v.  (N.  Y.)  652. 

Bailey,  23  Miss.  284.  *  Elam  t'.  Rawson,  21  Ga.  139. 

» Briley  v.  Sugg,  1  Dev.  &  Bait.  Eq. 


SUBEOGATION    OF    SURETY   WHO    PAYS    SPECIALTY.  3G0 

authority,  held  the  surety  entitled  to  subrogation  to  the  very 
place  with  all  the  rights  of  the  creditor,  wliile  the  later  English 
cases  held  that  payment  by  the  surety  extinguislied  the  specialty 
and  left  the  surety  a  simple  contract  creditor.  "  The  rights  of 
the  surety  in  this  matter  depend  on  no  subtle  technicality,  but 
upon  an  equity  which  springs  out  of  the  fact  of  payment,  and 
out  of  his  relation  to  the  principal  debtor,"  At  common  law 
the  specialty  may  be  extinguished,  but  in  equity  the  surety  is 
regarded  as  a  purchaser  thereof  A  purchaser  of  a  negotiable 
security  would  acquire  all  the  rights  of  the  creditor.  How  can  he 
occupy  a  position  in  a  court  of  equity  more  favorable  than  the 
surety?  The  surety  is  universally  held  to  have  the  same  rights 
as  to  collateral  securities  as  the  creditor,  and  to  have  the  right 
to  be  subrogated  to  them.  The  principles  of  national  justice 
and  reason  pass  them  to  him.  "  The  substitution  of  the  surety 
is  not  for  the  creditor  as  he  stands  related  to  the  principal  after 
payment,  but  as  he  stood  related  to  him  before  the  payment.  He 
is  substituted  to  such  rio-hts  as  the  creditor  then  had  against  the 
principal,  one  of  which  unquestionably  was  to  enforce  his  bond 
against  the  principal,  and  if  he  was  insolvent,  to  be  let  in  as  a 
bond  creditor."  By  doing  this  no  one  is  injured  anj  more  than 
if  the  creditor  had  himself  enforced  payment  against  the  prin- 
cipal as  a  bond  creditor.'  As  already  said,  there  is  a  class  of 
cases  which  hold  that  payment  of  a  specialty  by  a  surety  extin- 
guishes it  so  as  to  prevent  any  subrogation  thereto,  and  this, 
though  the  intention  be  not  to  extinguish  it,  and  the  surety  take 
an  assignment  of  it  to  himself.  The  general  rule  that  the  surety 
is  entitled  to  subrogation  to  the  securities  held  by  the  creditor,  is 
admitted,  but  it  has  been  said  that  this  rule  must  be  qualified 

^  Per  Nisbet  J.  in  Lumpkin  r.  Mills,  Kendrick  r.  Forney,   22  Gratt.  (Va.) 

4  G a.  343;  holding- the  same  thing,  see  748.     Holding  that  a  surety  will  be 

Powell's   Exrs.   v.    White,    11    Leigh  subrogated  to  the  benefit  of  a  recog- 

(Va.)  309;  Davis  v.  Smith,  5  Ga.  274;  nizance  when  it  is  not  extinguished  at 

Tinsley  v.    Oliver's  Admr.,   5  Munf.  law,    see   Salkeld   r.    Abbott.    Hayes 

(Va.)  419;  ex  parte  Ware,  5  Richard-  (Irish)    576.      As   to  subrogation    to 

son  Eq.  (So.  Car.)  473;  Grider  v.  Payne,  promissory  note  by  party  who  pays  the 

9  Dana  (Ky.)  188;  Shultz  v.  Carter,  same,  see  Rockingham  Bank  v.  Clag- 

Speer's  Eq.   (So.  Car.)  533.     Holding  gett,  2')  New  Hamp.  292.    To  prevent 

that  the  surety  will  be  ranked  as  a  the  bar  of  the  statute  of  limitations, 

specialty  creditor  when  necessary  to  see  Smith  v.  Swain,  7  Richardson  Eq. 

his  protection,  and  otherwise  not,  see  (So.  Car.)  112. 

24 


370  SUBROGATION. 

"  by  considering  it  to  apply  to  sncli  securities  as  continue  to  ex- 
ist, and  do  not  get  back  upon  payment  to  the  person  of  the 
principal  debtor."  ' 

§  274.  Surety  entitled  to  subrogation  to  all  securities  held  by 
creditor — General  observations — English  statute. — When  it  is 
conceded  that  on  principles  of  natural  justice  the  surety  who  has 
paid  the  debt  is  equitably  entitled  to  the  securities  therefor  held 
by  the  creditor,  it  seems  that  the  same  reasons  which  entitle  him 
to  any  of  the  securities  entitle  him  to  all  of  them.  It  is  difficult 
to  conceive  of  any  equitable  reason  why  one  security  for  the  debt 
should  be  extinguished  by  payment  more  than  another;  and  the 
whole  doctrine  of  subrogation  is  one  of  equity.  A  note,  bond, 
mortgage,  pledge  and  judgment  are  all  equally  securities  for  the 
debt,  and  collateral  to  it.  If  payment  by  the  surety  extinguishes 
one  of  them,  why  does  it  not  extinguish  them  all  ?  The  reason- 
ing which  makes  a  distinction  is  highly  technical,  and  certainly  has 
no  foundation  in  equit3^  This  subject  has  been  set  at  rest  in 
England  by  act  of  Parliament,  which  provides  that:  "Every 
person  who,  being  surety  for  the  debt  or  duty  of  another,  or  being 
liable  with  another  for  any  debt  or  duty,  shall  pay  such  debt  or 
perform  such  duty,  shall  be  entitled  to  have  assigned  to  him,  or 
to  a  trustee  for  him,  every  judgment,  specialty  or  other  security 
which  shall  be  held  by  the  creditor  in  respect  of  such  debt  or 
duty,  whether  such  judgment,  specialty  or  other  security  shall  or 
shall  not  be  deemed  at  law  to  have  been  satisfied  by  the  payment 
of  the  debt  or  performance  of  the  duty,  and  such  person  shall  be 
entitled  to  stand  in  the  place  of  the  creditor  in  any  action  or  other 
proceeding  at  law  or  in  equity,  in  order  to  obtain  from  the  prin- 
cipal debtor  or  any  co-surety,  co-contractor  or  co-debtor,  as  the 
case  may  be,  indemnification  for  the  advances  made  and  loss  sus- 
tained by  the  person  who  shall  have  so  paid  such  debt  or  per- 
formed such  duty  ;  and  such  payment  or  performance  so  made 
by  such  surety  shall  not  be  pleadable  in  bar  of  any  such  action 
or  other  proceeding  by  him;  provided  always  that  no  co-surety, 
co-contractor  or  co-debtor  shall  be  entitled  to  recover  from  any 
other  co-surety,  co-contractor  or  co-debtor,  by  the  means  afore- 

'  Copis  V.  Middleton,    1   Turner  &  Trustees  of  Athenaeum,  3  Ala.  302; 

Russ.  224,  perLd.  Eldon,  C;  Jones  ?;.  Bledsoe  v.  Nixon,  68  Nor.  Car.  521, 

Davids,   4  Russell,    277;  Hodgson  v.  Bucknerv.  Morris,  2  J.  J.  Marsh  (Ky.) 

Shaw,   3  Mylne  &  Keen  183;   Fosters.  121. 


SURETY   SUBROGATED   TO    MORTGAGE.  371 

said,  more  than  the  just  proportion  to  which,  as  between  those 
parties  themselves,  such  last  mentioned  person  shall  be  justly 
liable."  • 

§  275.  Surety  who  pays  entitled  to  subrogation  to  mortgage 
given  by  principal  to  creditor  for  security  of  debt. — A  surety 
who  pays  the  debt  of  his  principal  is  entitled  to  subrogation  to  a 
mortgage  given  by  the  principal  to  the  creditor  for  the  security 
of  the  debt,^  and  he  may,  with'  or  without*  a  formal  assignment, 
thereof,  have  the  same  foreclosed  in  his  own  name,  for  his  benefit. 
He  cannot,  however,  usually  enforce  a  mortgage  or  lien  given  for 
the  security  of  the  debt,  unless  he  first  pays  the  debt.*  A  being 
indebted  to  B,  gave  him  a  chattel  mortgage  on  certain  property 
to  secure  the  debt.  C  was  a  surety  for  the  same  debt  and  was 
obliged  to  pay  it,  and  took  an  assignment  of  the  mortgage  from 
B.  During  the  continuance  of  the  mortgage,  D  took  the  prop- 
erty included  in  tlie  mortgage  and  converted  it,  and  C  sued  D  for 
the  property.  Held,  he  was  entitled  to  recover  its  value  from  D.' 
The  surety  who  pays  a  debt  secured  by  mortgage,  will,  by  means 
of  subrogation  thereto,  have  preference  over  a  subsequent  mort- 
gage on  the  same  property,  given  by  the  principal  to  the  creditor 
to  secure  a  subsequent  debt.'^  Tims,  A  mortgaged  his  freehold 
and  copyhold  estates  to  C  to  secure  6,000Z.,  and  B  (A's  daughter) 
by  the  same  mortgage  conveyed  her  freehold  and  copyhold  estate 
to  secure  A's  debt.  It  was  provided  in  the  mortgage  that  A's 
property  should  be  primarily  liable  for  the  6,0001.  Afterwards 
A  made  a  second  mortgage  on  his  same  property  to  secure  a  fur- 
ther loan  of  700?.  made  him  by  C.  Held,  C  was  not  entitled  as 
against  B  to  tack  his  second  mortgage  to  the  first,  but  that  B 
was  entitled  to  redeem  the  first  mortgage  upon  payment  of  the 
6,0001.  C,  when  he  took  the  second  mortgage,  had  full  knowl- 
edge of  all  the  facts,  "  and,  therefore,  he  could  only  take  subject 
to  such  rights  as  the  daughters  had  acquired  by  reason  of  their 

^  Mercantile  Law  Amendment  Act,  *  McLean  v.  Towle,  3  Sandf.  Ch.  R. 

19  &  20  Vict.  c.  97,  sec.  5.  117. 

^Gossin  t>.   Brown,    11   Pa.  St.  527;  *  Conwell  t\  McCowan,  53  IlL  363; 

Jacques  v.  Fackney,  64  111.  87;  Copis  Lee  v.  Griffin,  31  Miss.  632. 
V.  Middleton,   2  Turner  &  Russ.  224;  « Lewis  v.   Palmer,   28  New  York, 

Fawcetts  v.  Kimmey,  33  Ala.  261 ;  Mil-  271. 

ler  V.  Pendleton,  4  Hen.  &  Munf.  (Va.)  "■  To  this  general  effect,  see  National 

436.  Exchange  Bank  v.   Silliman,  65  New 

2  Norton  v.   Soule,   2  GreenL  (Me.)  York,  475. 
341. 


372  SUBROGATION. 

havino-  concurred  in  the  former  deed.  'Now,  it  is  quite  clear  that 
a  surety  paying  of  the  debt  of  his  principal,  is  entitled  to  a 
transfer  of  all  the  securities  held  by  the  creditor,  in  order  that  he 
may  make  them  available  against  the  debtor  as  the  original  creditor 
might  have  done.  *  The  equity  gives  to  the  siiret}^  a  right  to 
call  for  a  transfer  of  the  securities,  and  so  binds  those  securities 
into  whatever  hands  they  may  come,  with  notice  of  the  cliarge."  ' 
So  where  a  surety,  on  a  note  secured  by  mortgage  on  the  land  of 
the  principal,  paid  the  note,  and  the  creditor,  without  the  assent 
of  the  surety,  entered  satisfaction  of  the  mortgage,  so  as  to  leave 
the  same  subject  to  the  lien  of  a  subsequent  judgment  recovered 
^by  the  creditor  against  the  ]3rincij)al,  and  proceeded  to  levy  the 
same  upon  the  land,  it  was  held  that  the  mortgage  having:  been 
given  to  secure  the  debt,  was  as  much  for  the  benefit  of  the  surety 
as  the  creditor,  and  the  surety  having  paid  the  debt,  was  entitled 
to  the  benefit  of  the  mortgage  to  the  extent  of  his  payment,  and 
this  right  was  prior  to  the  lien  of  the  judgment,  and  the  land 
having  been  sold  under  a  power  in  a  prior  mortgage,  leaving  a 
surplus,  the  surety  was  entitled  to  receive  such  surplus  to  reim- 
burse himself  for  what  he  had  so  paid.^  A  having  obtained  from 
B  the  advance  of  money,  conveyed  certain  lands  by  way  of  mort- 
gage to  secure  the  amount.  C  as  surety  for  A,  conveyed  a  charge 
of  5,0001.  further,  to  secure  the  debt.  The  proviso  of  redemption 
was  conditioned,  that  if  A  or  C,  or  eitlier  of  them,  should  on  a 
day  therein  named,  repay  B  the  sum  borrowed,  B  would  re-convey 
the  lands  and  charges  on  the  uses  on  which  they  liad  been  held, 
before  the  execution  of  the  deed.  The  period  of  redemption 
having  expired,  the  debt  was  paid  out  of  C's  charges.  Held,  that 
notwithstanding  the  form  of  the  proviso  of  redemption,  C  was 
entitled  to  the  benefit  of  B's  securities  on  A's  lands.^  Where 
one  of  two  joint  sureties,  holding  a  mortgage  on  property 
given  to  them  jointly  by  the  principal  for  their  indem- 
nity, pays  a  part  of  the  debt,  and  releases  a  part  of  the 
mortgaged  property,  the  other  surety  may  oppose  the  value 
of  the  property  released  to  that  amount  of  the  claim  against  him 
for  contribution.     The  co-surety  who  makes   such  pa3anent,  ac- 

'Bowker  v.   Bull,  1  Simons  (N.  S.)  ^City  National  Bank  of  Ottawa   v' 

29,   per  Lord  Cranworth,    V.    C;  to  Dudgeon,  65  111.  11. 

contrary  effect,  see  Williams  v.  Owen,  ^M'Neale  v.  Reed,  7  Irish,  Ch.  Rep. 

13  Simons,  597.  251. 


INDEMNITOR    OF    SURETY.       MARSHALING    ASSETS.  373i 

quires  in  equity  an  exclusive  right  to  that  amount  of  tlie  j^roperty 
mortgaged  for  their  security.*  P  made  a  mortgage  to  R  to  in- 
demnity him  as  surety  for  several  debts.  For  some  of  these 
debts  M  became  bound  as  P's  surety,  and  thereby  released  R  from 
such  debts  as  he  (M)  became  bound  for.  There  did  not  appear 
to  have  been  any  agreement  for  an  assignment  of  the  mortgage 
to  M,  and  if  there  was  such  an  agreement  it  had  not  been  carried 
out.  Held,  that  to  the  extent  that  M  became  bound  and  released 
E,,  the  lien  of  the  mortgage  was  extinguished,  both  as  to  R  and 
tlie  creditor,  and  therefore  M  could  not  as  to  such  debts  be  sub- 
rogated to  it.'' 

§  276.  Indemnitor  of  surety  who  pays  debt  entitled  to  subro- 
gation— Subrogation  against  third  parties  with  notice— Marshal- 
ing assets — Vendor's  lien. — A  party  who  agrees  to  indemnify  a 
surety  against  loss  by  reason  of  his  obligation  as  surety,  and  who 
afterwards  pays  the  debt  for  which  the  surety  is  bound,  is  en- 
titled to  subrogation,  the  same  as  the  surety  would  have  been  if 
he  had  paid  the  debt.  His  equities  are  the  same  as  the  sureties 
would  have  been,  and  the  payment  by  him  is  not  in  such  case 
voluntary.'  A  surety  being  entitled  to  the  benefit  of  all  the 
secureties  for  the  debt  which  are  available  for  his  indemnity,  a 
l^erson  taking  any  of  such  securities  from  tlie  principal,  witli  no- 
tice of  the  facts,  is  bound  in  equity  to  hold  them  for  the  indem- 
nity of  the  surety,  and  subject  to  all  the  equities  whicli  the  sure- 
ties could  oriffinallv  enforce.  AVhere  there  are  a  first  and  second 
mortgage  on  real  estate  to  secure  debts  due  different  parties,  and 
a  surety  for  the  debt  secured  by  the  first  mortgage  pays  it,  but 
the  holder  of  the  second  mortgage,  with  knowledge  of  the  first 
mortgage,  gets  the  legal  title,  such  surety  has  to  the  extent  of  the 
amount  paid  by  him  a  priority  in  the  land  over  the  holder  of  the 
second  mortgage.*  Equity  will  not  marshal  assets  to  tlije  preju- 
dice of  a  surety  so  as  to  destroy  his  right  to  subrogation.  Thus, 
A  was  indebted  to  B,  and  placed  in  his  hands  property  to  pay  the 
debt,  and  C  also  mortgaged  his  land  to  secure  the  same  debt.     B 

'Roberts  v.  Sayre,  6T.  B.  Mon.(Ky.)  indemnity  should  be  assigned  to  him, 

188.  see  Brien  v.  Smith,  9  Watts  &  Serg. 

^  Hunter    v.  Richardson,    1    Duvall  (Pa.)  78. 

(Ky.)     247;     to    a    contrar;,     effect,  ^Rittenhouse  v.  Levering',  6  Watts 

where  a  third  person  paid  the   debt  &  Serg-.  (Pa.)  190. 

for  which  the  surety  was  hable  under  ■*  Drew  v.  Lockett,  32  Beavan,  499. 
an  agreement  that  the  mortgage  for 


3T-i  SUBROGATION. 

obtained  judgment  for  the  debt  against  A,  and  other  creditors  of 
A  obtained  subsequent  judgments  against  him.  The  subsequent 
judgment  creditors  Hied  a  bill  to  have  the  secureties  marshaled, 
and  sought  to  have  B's  debt  satisfied  out  of  the  premises  mort- 
gaged by  C.  Held,  they  were  not  entitled  to  the  relief.  If  C 
had  paid  the  debt,  he  would  have  been  entitled  to  subrogation  to 
B's  judgment  against  A,  and  moreover,  if  the  marshaling  was 
allo\^''ed,  the  effect  would  be  to  compel  C  to  pay  the  subsequent 
judgment  creditors.^  Two  judgments  were  recovered  for  the 
same  debt,  one  against  A,  the  principal,  and  the  other  against  B, 
a  surety,  which  became  liens  on  the  land  of  each  of  them.  After- 
wards B  mortgaged  a  piece  of  land  to  C,  and  afterwards  D  re- 
covered a  judgment  against  A.  Then  D  purchased  the  judg- 
ments against  A  and  B  first  mentioned,  and  sold  property  of  A 
on  the  last  judgment,  more  than  enough  to  satisfy  the  first  judg- 
ments and  a]iplied  the  money  to  thejDayment  of  the  last  judgment. 
Dthen  levied  an  execution  issued  on  the  first  judgment  against  B 
on  the  land  mortgaged  to  C.  Held,  that  C's  equity  in  the 
mortgaged  premises  was  superior  to  D's.  The  property  of  A 
was  the  primary  fund  for  the  payment  of  the  first  judgments, 
and  after  D  bought  the  judgments  he  stood  in  the  place  of 
the  original  holder,  and  must  apply  the  money  realized  from 
the  sale  to  the  payment  of  the  first  judgments,  which  were  a 
first  lien  on  the  land  of  A."  As  the  surety  by  means  of  subroga- 
tion stands  in  the  very  place  of  the  creditor,  he  cannot  occupy 
any  better  position  than  the  creditor  did  at  the  time  the  debt  was 
paid  to  him.'  Where  a  party  bought  a  piece  of  land  and  gave  a 
note  for  the  purchase  money  with  a  surety  on  the  note,  and  the 
land  was  conveyed  to  the  purchaser  by  deed,  and  no  mortgage 
was  taken  to  secure  the  note,  it  was  held  that  the  vendor  by  tak- 
ing the  note  w'itli  surety  had  waived  his  vendor's  lien,  and  the 
surety  could  not  by  suit  in  chancery  have  the  land  sold  and  ap- 
plied to  the  payment  of  the  debt,  so  as  to  cut  off  subsequent 
judgment  creditors  of  the  principal."  Where  land  is  sold  and 
the  purchaser  gives  bond  with  surety  for  the  paymentof  thepur- 
^Joseph  v.  Heaton,  5  Grant's  Ch.  R.  463.  To  similar  effect,  see  Miller  v. 
636.  Miller,  Phillips  Eq.  (Nor.  Car.)  85;  see, 

MVise  V.  Shepherd,  13  111.  41.  also,  Henley  v.  Stemmons,  4  B.  Mon. 

^Houston  tJ.  Branch  Bank  at  Hunts-       (Ky.)  131  where  it  is  held  that  pay- 
ville,  25  Ala.  250.  ment  by  a  surety  extinguishes  a  ven- 

''  Bradford  Admr,  v.  Marvin,  2  Fla.       dor's  lien. 


SUBROGATION    OF    SHERIFF'S    SURETIES.  375 

chase  money,  and  the  title  is  retained  as  a  further  security  for  its 
payment,  the  surety  for  the  original  purchase  money  has  the 
first  equity  to  be  indemnified,  and  his  claim  is  preferred  to  that 
of  a  purchaser  of  the  equity  of  redemption  at  a  sherifi''s  sale  or 
of  any  subsequent  incumbrancer.* 

§  277.  Subrogation  of  sheriff's  sureties. — Where  a  sheriff  sold 
land  on  a  decree  of  partition,  and  took  a  note  for  the  purchase 
money,  and  his  sureties  were  obliged  to  pay  the  heirs  the  money 
for  which  the  land  sold,  it  was  held  that  such  sureties  were  enti- 
tled to  be  subrogated  to  all  the  rights  in  the  note  which  such 
heirs  had,  and  to  prosecute  a  suit  in  the  name  of  the  sheriff",  and 
have  the  proceeds  of  the  note.*  Where  a  sheriff  falsely  returned 
that  he  had  made  an  execution,  and  one  of  his  sureties  paid  the 
plaintift*  in  execution  the  amount  thereof,  it  was  held  that  he  was 
entitled  to  have  the  sherift'^s  return  set  aside,  and  a  new  execution 
issued  against  the  defendant  in  the  judgment,  although  the  sher- 
iff had  confessed  a  judgment  in  favor  of  his  sureties  for  a  sum 
including  the  above  mentioned  sum  paid  by  the  surety,  but  such 
judgment  had  not  been  paid.'  Execution  was  issued  against  A, 
and  placed  in  the  hands  of  the  sheriff,  who  failed  to  make  due 
return,  and  judgment  was  therefore  rendered  against  the  sheriff' 
and  his  sureties  for  the  amount  of  the  execution,  which  the  sure- 
ties paid:  Held,  they  were  entitled,  without  obtaining  any  judg- 
ment, to  file  a  bill  to  be  subrogated  to  the  rights  of  tlie  creditor 
in  the  judgment  against  A,  and  to  enforce  such  judgment  against 
certain  effects  of  A  liable  thereto.  The  court  said:  "This  right 
of  substitution  subsists  in  favor  of  a  person  who  is  compelled  to 
pay  the  debt  of  another  in  order  to  protect  liis  own  interest."  ' 
A  sheriff"  appointed  a  deputy,  who  gave  bond  with  surety,  and  col- 
lected money  and  used  it.  The  sureties  of  the  sheriff  were 
obliged  to  pay  the  money  thus  collected,  and  the  sheriff  being  in- 
solvent, it  was  held  that  they  were  entitled  to  file  a  bill  against, 
and  obtain  indemnity  from,  the  surety  on  the  bond  of  the  deputy 
for  the   money  thus  paid  by  them.^     A  recovered  a  judgment 

'SliofFner    v.   Fogleman,    Winston  *  Bittick  f .  Wilkins,  7  Heisk.  (Tenn.) 

Law  &  Eq.  (Nor.  Car.)  12.     On  same  307,   per  Deadrick,  J.     To    contrary 

subject,  see  Gliiselin  v.  Fergusson,  4  effect,  see  Stout  v.  Dilts,  1  Southard 

Harris  &  Johns.  (Md.)  522;   Burk  v.  (N.  J.)  218. 

Chrisman,  3  B.  Mon.  (Ky.)  50.  ^Brinson  v.  Thomas,   2  Jones  Eq. 

2  Sweet,  Admr.  v.  Jeffries,  4S  Mo.  279.  (Nor.  Car.)  414;  Blalock  v.  Peake,  3 

3  Saint  V.  Ledyard,  14  Ala.  244.  Jones  Eq.  (Nor.  Car.)  323. 


376  SUBROGATION. 

ao-ainst  B,  and  execution  was  issued  and  delivered  to  the  slieriff, 
who  levied  on  a  county  order  as  the  property'  of  B,  and  turned 
the  same  over  to  A,  who  credited  the  execution  for  that  amount. 
C  sued  the  sheriff  and  his  sureties  for  the  order,  claiming  that  it 
was  his,  and  recovered,  and  the  sureties  paid  the  judgment  against 
them  and  the  sheriff,  and  sued  A  for  the  amount  of  the  order: 
Held,  they  were  entitled  to  recover.  The  order  belonged  to  C, 
and  he  might  have  sued  A  for  it  instead  of  the  sheriff  and  his 
sureties,  and  it  was  proper  that  the  sureties  Avho  had  paid  the 
value  of  the  order,  should  be  subrogated  to  the  claim  of  C  against 
A,  and  permitted  to  enforce  it.* 

§  278.  Subrogation  of  sureties  of  administrator  and  of 
county  and  city  treasurer. — Where  an  administrator  being  about 
to  leave  the  state,  deposits  the  assets  of  the  estate  with  a  person 
in  trust,  that  he  will  pay  the  next  of  kin  of  the  intestate,  the 
sureties  of  such  administrator,  who  have  been  obliged  to  pay 
judgments  recovered  against  them  by  the  next  of  kin,  liave  a 
right  to  call  upon  the  trustee  for  the  assets  so  received  by  him, 
and  have  a  right  to  be  subrogated  to  the  rights  of  such  of  the 
next  of  kin  as  have  made  them  responsible.^  Where  an  admin- 
istrator pays  debts  of  the  intestate,  to  an  amount  exceeding  the 
assets,  he  may  subject  the  real  estate  in  the  hands  of  the  heirs  to 
his  reimbursement,  and  the  surety  of  an  administrator  who  has 
so  disbursed  his  funds,  may  be  subi'ogated  to  the  rights  of  his 
principal.^  Where  the  note  of  a  deceased  debtor  was  paid  by 
the  note  of  his  administratrix,  and  both  notes  were  indorsed  by 
the  same  surety,  who  was  obliged  to  pay  the  last  note,  it  was  held 
that  such  surety  could  not  by  suit  in  chancery,  enforce  the  first 
note  against  the  estate  of  the  principal,  as  it  had  been  paid  and 
extinguished.  But  if  the  estate  was  in  any  manner  indebted  to 
the  administratrix,  the  surety  might,  by  reason  of  his  suretyship 
for  the  admhiistratrix,  reach  the  estate  in  that  way  to  the  amount 
of  such  indebtedness.^  The  law  provided  that  a  county  treasurer 
should  give  two  bonds,  one  to  the  state,  and  one  to  the  county, 
and  this  was  done.  The  county  was  by  law  liable  to  the  state, 
for  money  collected  by  the  treasurer  for  the  state.     The  treas- 

^SkifF  V.  Cross,  21  Iowa,  459.  419;  see,  also,  Schoolfielfrs  Admr.  v. 

^  Kennedy  v.  Pickens,   3  Ired.   Eq.  Rudd,  9  B.  Mon.  (Ky.)  291. 

(No.  Car.)  147.  4  gj-Q^^  ^_  l^^^^  4  ^ja.  50. 
2  Taylor  v.  Taylor,  8  B.  Mon.  (Ky.) 


SUBROGATION  OF  SURETY  FOR  PART  OF  DEBT.       377 

urer  became  a  defaulter  to  the  state,  and  the  county  paid  the 
amount  of  the  defalcation.  Held,  the  county  was  entitled  to 
recover  against  the  sureties  on  the  bond  to  the  state.^  Certain 
parties  became  the  sureties  of  a  city  treasurer.  The  treasurer 
deposited  a  large  sum  of  money  in  a  bank,  which  belonged  to 
the  city,  and  for  which  it  might  have  sued  the  bank.  The  treas- 
urer made  default,  and  the  sureties  paid  the  amount  of  the  defal- 
cation, and  claimed  to  be  subrogated  to  the  rights  of  the  city 
against  the  bank.  It  was  contended  that  they  could  only  be  sub- 
rogated to  the  rights  of  the  city  against  the  treasurer,  but  the 
court  held  them  entitled  to  subrogation  to  the  rights  of  the  city 
against  the  bank,  and  said,  "  The  equities  of  sureties  to  subroga- 
tion extends  not  only  to  the  rights  of  the  creditor  as  against 
the  principal,  but  to  all  rights  of  the  creditor  respecting  the 
debt  which  the  sureties  pay.* 

§  279.  Surety  for  part  of  debt  no  right  to  subrogation  to 
securities  for  another  part  of  same  debt — Similar  cases. — A 
surety  for  a  part  of  a  debt  is  not  entitled  to  the  benefit  of  a  secur- 
ity given  by  the  debtor  to  the  creditor  at  another  time  for  a  sep- 
arate and  distinct  part  of  the  same  debt.'  Defendants  lent  A  at 
the  same  time  two  sums,  one  of  2,000?.  and  one  of  3,000Z.,  each  on 
separate  and  distinct  securities,  and  the  plaintiff  was  surety  for 
the  2,000?.,  but  not  for  the  other  sum.  Held,  that  the  plaintiff 
on  paying  the  2,000?.  was  not  entitled  to  have  the  securities  there- 
for transferred  to  him  until  the  3,000?.  also  Avere  paid.  The 
court  said,  that  as  against  the  principal  it  was  well  settled  that 
the  creditor  could  tack  his  claims  and  retain  all  the  securities  till 
the  3,000?.  were  paid.  A  surety  upon  paying  the  debt  is  entitled 
to  all  the  securities  held  by  the  creditor,  "  provided  the  creditor 
has  no  lien  upon  them  or  right  to  make  them  available  against 
the  principal  debtor,  to  enforce  the  payment  of  a  debt  different 
from  that  which  the  surety  has  paid.  But  if  the  creditor  has  such 
a  riirht  and  one  arisino;  out  of  the  transaction  itself,  of  which  the 
suretyship  forms  a  part,  then  the  right  of  the  surety  to  the  bene- 
fit of  these  securities  is  subordinate  to  the  right  of  the  .creditor 
to  make  them  available  for  the  payment  of  his  other  claims,  and 
can  only  be  made  available  after  the  paramount  right  is  satis- 

'  Elder  v.  Commonwealth,  55  Pa.  St.  ^  City  of  Keokuk  v.  Love,  31  Iowa, 

485.  119. 

^  Wade  V.  Coope,  2  Simons,  155. 


378  SUBEOGATION. 

fied."  '  A  being  indebted  to  B,  lodged  several  securities  with  him 
as  collateral  for  that  debt;  A  afterwards  borrowed  a  further  sum 
of  money  from  B,  for  which  0  became  his  surety,  but  there  was 
no  express  agreement  that  the  securities  already  deposited  should 
cover  the  latter  advance.  A  became  bankrupt,  and  B  called  upon 
C  to  pay  the  second  debt.  The  securities  in  the  hands  of  B  were 
more  than  sufficient  to  pay  the  first  debt,  and  it  was  held  that  C 
should  be  allowed  the  surplus  in  reduction  of  the  second  debt.'' 

§  280.  When  surety  subrogated  to  creditors'  right  to  set  aside 
fraudulent  conveyances  by  principal — Other  cases. — Where  prin 
cipal  and  surety  were  liable  for  a  debt  and  the  principal  conveyed 
certain  slaves  without  consideration,  and  the  surety  was  afterwards 
obliged  to  pay  the  debt,  it  was  held  that  he  had  the  same  right  to 
file  a  bill  to  set  aside  the  conveyance  of  the  slaves  as  fraudulent, 
that  the  creditor  had  before  payment  by  the  surety.^  It  has  been 
held  that  two  co-sureties  who  have  paid  the  debt  of  the  principal, 
may  jointly  file  a  bill  to  be  subrogated  to  a  lien  of  the  creditor, 
for  the  debt  on  land  of  the  principal.''  It  has  also  been  held  that 
a  surety  .who  contests  his  liability,  and  a  trustee  to  whom  prop- 
erty has  been  conveyed  for  the  indemnity  of  such  surety,  cannot 
be  joined  as  defendants  in  the  same  suit.^  Agave  a  mortgage  to 
B,  who  was  his  surety  on  a  note,  to  indemnify  him  from  loss  as 
such,  which  mortgage  was  conditioned  to  be  void  if  A  should  pay 
or  satisfy  the  note  by  renewal  or  otherwise.  A  renewed  the  note 
with  different  sureties,  and  B  assigned  the  mortgage  to  the  new 
sureties.  Before  such  assignment  A  had  mortgaged  the  premises 
to  C.  Held,  that  0  was  entitled  to  hold  the  property.  The  first 
mortgage  hecame  functus  officio  and  had  performed  its  office  by 
its  terms  when  the  note  was  renewed.  A  new  mortgage  then 
given  would  not  have  taken  precedence  over  the  mortgage  given 
to  C,  and  an  assignment  of  the  old  one  gave  no  greater  rights." 

^Farebrother    v.    Wodenhouse,     23  Ala.  198,  it  was  held  that  a  surety  who 

Beavan,  18,  per  Sir  John  Romilly,  M.  paid  a  judgment  against  himself  and 

R.     To  the  effect,   that  surety  who  principal,  extinguished  the  judgment, 

pays  the  bond  of  himself  and  princi-  and  that  he  could  not  file  a  bill  to  set 

pal  is  entitled  to  suborgation  to  former  aside  a  fraudulent  conveyance  by  the 

bond  for  same  debt  given  by  principal,  principal  without  first  getting  a  judg- 

see  Hodgson  v.  Shaw,  3  Mylne  &  Keen,  ment  against  him. 

183.  4  Kleiser  v.  Scott.  6  Dana  (Ky.)  137. 

.    » Praed  v.  Gardiner,  2  Cox,  86.  ^  People  v.  Skidmore,  17  Cal.  260 

"Tatum  V.  Tatum,  I  Ired.  Eq.  (Nor.  « Bonham  v.  Galloway,  13  111.  68. 
Car.)  113.    In  Sanders  v.  Watson,  14 


SUBEOGATION   AS   AGAINST    SPECIAL    BAIL.  379 

A  as  princijial  and  B  as  surety  executed  a  bond  to  C,  conditioned 
to  make  a  title  to  land  on  payment  of  the  purchase  money.  Be- 
fore the  j)urchase-nioney  was  all  paid,  tlie  land  was  sold  at  sheriff's 
sale,  to  satisfy  executions  against  A  who  became  insolvent.  C 
sued  B  for  a  failure  to  make  title  to  the  land,  and  recovered.  Held, 
that  B,  to  the  extent  of  the  money  thus  paid  by  him,  had  a  i-ight 
to  follow  the  land  into  the  hands  of  the  purchaser  at  sheriff's 
sale.  He  was  entitled  to  subrogation  to  the  right  which  C  had  to 
file  a  bill  for  specific  performance,  and  follow  the  land.' 

§  281.  When  surety  not  entitled  to  subrogation  as  against 
special  bail  of  the  principal  for  the  same  debt — Other  cases. — 
Separate  suits  on  a  bond  were  brought  against  the  principal  A 
and  the  surety  B,  and  A  was  held  to  bail,  and  gave  C  as  surety  in 
the  bail  bond.  D  bought  the  judgments  which  were  recovered 
in  the  suits,  and  was  about  to  proceed  against  B,  wdien  he  filed  a 
bill  and  offered  to  pay  what  remained  due  on  the  judgment 
ao;ainst  him,  and  claimed  to  be  subro^rated  to  the  riijhts 
of  the  creditor  against  C.  Held,  the  right  of  subrogation 
did  not  exist,  as  0  had  not  been  fixed  as  bail  when  B  offered  to 
pay  the  judgment."  A,  B  and  C  being  joint  surities,  judgment 
was  rendered  against  them,  which  became  ar  lien  on  the  land  of 
each.  Afterwards  A  sold  his  land  to  D,  and  B  and  C  became 
insolvent,  and  sold  their  land  to  F.  Execution  was  issued  by  the 
creditor  and  levied  on  the  land  purchased  by  D,  who  paid  the 
entire  debt,  and  requested  the  creditor  to  assign  the  judgment  to 
him,  which  request  was  refused.  D  then  filed  his  bill  against 
the  creditor,  and  B,  C  and  F,  to  subject  the  the  land  sold  by  B 
and  C  to  F,  to  the  payment  of  two-thirds  of  the  debt  paid  by 

'  Freeman  v.  Mebane,  2  Jones,  Eq.  funds  of  the  firm  in  his  hands  sufficient 

(Nor.   Car.)  44.    For  other  cases  of  to  pay  the  debt,   before   proceeding 

surety's  right  to  subrogation,  see  Silk  against    property    conveyed    by  dead 

V.  Eyre,  Irish  Rep.  9  Eq.  393;  Wright  partner  in  his  life-time,  as  indemnity 

V.  Morley,  11  Vesey,  12.   Holding  that  for  his  surety,  see  Newsom  v.  McLon- 

an  accommodation  acceptor  of  a  bill  don,  6  Georgia,  392.     As  t^  right  of 

of  exchange  is  not,  under  certain  pecu-  guarantor  who  pays  debts  of  a  firm  to 

liar  circumstances,  entitled  to  subroga-  come  on  property  bought  by  one  part- 

tion  to  mortgage  for  indemnity  of  ac-  ner  with  supposed  profits  of  the  firm, 

commodation  indorser  of  same  bill,  see  see  Greene's  Exrs.  v.  Ferrie,  1  Desaus- 

Gomez  v.   Lazarus  1   Dev.  Eq.  (Nor.  sure,  (So.  Car.)  164. 

Car.)  205.     Holding  that  a  creditor  of  ^  Creager  v.   Brengle,   5  Harris  & 

a  partnership  can  be  compelled  to  pro-  Johns.  (Md.)  234. 
ceed  against  surviving  partner,  who  has 


380  SUBROGATION. 

liim,  and  it  was  liekl  lie  was  entitled  to  the  relief  songlit.  The 
Court  said:  "While  he  would  have  no  redress  at  law  in  such  a 
case,  equity  in  furtherance  of  justice,  will  subrogate  him  to  the 
rights  of  his  grantor,  and  charge  the  land  bound  by  the  lien  in 
the  hands  of  the  other  sureties,  or  their  grantees,  who  purchased 
with  notice."  *  Judgment  was  recovered  against  principal  and 
surety  for  $1,900.  Proj^erty  of  the  surety  was  sold  on  execution, 
which  realized  $815.93,  which  was  applied  on  the  judgment. 
Afterwards  the  property  of  the  principal  was  sold,  and  realized 
enough  to  pay  the  balance  of  said  judgment,  and  all  other  judg- 
ments, against  the  principal  of  prior  or  equal  date,  and  left 
money  enough  in  the  hands  of  the  creditor  to  rej)ay  the  surety 
the  amount  realized  from  the  sale  of  his  property.  Held,  that 
the  surety's  right  to  this  money  was  superior  to  the  right  of  the 
creditor  to  retain  it  to  pay  a  subsequent  debt  due  by  the  prin- 
cipal, to  the  creditor.' 

§  282.  "When  creditor  entitled  to  securities  given  by  principal 
to  surety  for  his  indemnity. — As  a  general  rule,  where  a  surety, 
or  a  2:>erson  standing  in  the  situation  of  a  suretj^  for  the  payment 
of  a  debt,  receives  a  security  for  his  indemnity,  and  to  discharge 
such  indebtedness  the  principal  creditor  is  in  equity  entitled  to 
the  full  benefit  of  that  security,  and  it  makes  no  difference  that 
such  principal  creditor  did  not  act  upon  the  credit  of  such  secur- 
ity in  the  first  instance,  or  even  know  of  its  existence.  The 
authorities  place  the  principle  upon  tl^e  ground  that  as  the  secur- 

'  Furnold  v.  The  Bank  of  the  State  chase  money  who  has  paid  the  same, 

of  Missouri,  44  Mo.  336.  see  Rush  v.  The   State,    20   Ind.   432. 

^  Hardcastle  v.  Commercial  Bank,  1  Fov  a  case  deciding  that  under  its  pe- 

Harrington  (Del.)  374;  National  Ex-  culiar  circumstances   the  holder  of  a 

change   Bank  v.   Silliman,    65    New  bill  could  not  be  subrogated  to  a  mort- 

York,  475.  Holding  that  a  creditor  of  gage  given  for  the  indemnity  of  an  ac- 

a  surety  is  entitled  to  be  subrogated  commodation  acceptor,  see  St.  Louis 

to  a  judgment  which  the  surety's  prop-  Building  and  Savings  Assn.  v  Clark,  36 

erty  has  paid,  in  preference  to  a  sub-  Mo.  601.   For  a  peculiar  case,  in  which 

sequent  creditor,  to  whom  the  surety  a  surety  was  held  entitled  to  subroga- 

has  assigned  his  right  to  subrogation,  tion  to  a  mortgage  given  by  the  prin- 

see  Huston's  Appeal,  69  Pa.  St.  485,  cipal  after  the  surety  became  liable, 

overruling  Harrisburg  Bank  v.  Ger-  and  after  another  mortgage  on  the 

man,  3  Pa.  St.,  300.  For  a  questionable  same  property  for  a  less  number  and 

case,  holding  that  the  equity  of  a  pur-  aggregate  amount  of  debts  had  been 

chaser  from  a  purchaser  of  land  who  canceled,  see  Cory  v.  Leonard,  56  New 

had  no.  paid  for  it,  has  a  prior  claim  York,  494. 
on  the  land  to  a  surety  for  the  pur- 


CKEDITOR   ENTITLED   TO   INDEMNITY    GIVEN    SURETY.  88 1 

ity  is  a  trust  created  for  the  better  securing  of  the  debt,  it  at- 
taches to  it,  and  hence  it  is  tliat  it  may  be  made  available  by  the 
creditor,  although  unknown  to  him."  *  The  right  of  the  creditor 
is  the  same  when  the  security  is  a  mortgage  or  other  lien  given 
the  surety  by  the  principal  after  the  principal  and  surety  have 
both  become  bound,  even  though  there  may  have  been  no  previous 
agreement  that  indemnity  should  be  given,'  To  entitle  the 
creditor  to  enforce  this  right  in  equity,  it  is  not  necessary  that  he 
should  have  exhausted  his  remedies  at  law,  or  have  reduced  his 
debt  to  judgment.^  A  mortgage  given  by  the  principal  maker  of 
a  promissory  note  to  his  snrety  on  the  note,  conditioned  that  the 
principal  will  pay  the  note  and  save  the  surety  harmless,  creates 
a  trust  and  lien  which  subsists  after  the  creditor's  claim  on  the 
surety  for  payment  of  the  note  is  barred  at  law  by  the  statute 
of  limitations,  and  though  the  fee  of  the  mortgaged  property  has 
by  foreclosure  become  vested  in  the  surety.  The  trust,  which  in- 
ures to  the  benefit  of  the  creditor,  subsists  till  the  debt  is  paid, 
and  may  be  enforced  against  any  one  who  takes  the  property  with 
notice,"  After  a  trust  of  this  kind  has  been  created,  it  cannot 
usually  be  defeated  without  the  consent  of  all  parties  in  interest, 
unless  it  be  by  a  conveyance  to  a  hona  fide  purchaser  without  no- 
tice.^ Special  circumstances  may  create  an  exception  to  this  rule. 
Thus  J  mortgaged  certain  real  estate  to  B,  to  indemnify  him  for 
drafts  which  he  accepted  as  J's  surety.  Afterwards  B  mortgaged 
to  Q  all  his  interest  in  the  property  mortgaged  to  him  for  indem- 
nity, to  secure  a  loan  made  by  Q  to  J,     It  was  the  intention  of 

'  Kramer  &  Rahm's  Appeal,  37  Pa.  ^  SafFold  v.  Wade's  Exr.  61  Ala.  214; 

St,  71  per  Thompson,  J.;  Curtis  v.  Ty-  Kinsey  v.  McDearmon,  5  Cold.  (Term.) 

ler,  9  Paige  Ch.  R.  432;  New  London  392. 

Bank  v.  Lee,  11  Ct.  112;  Rice's  Appeal,  *  Eastman  v.  Foster,  8  Met.  (Mass.) 

79  Pa.  St,  168;  Owens  v.  Miller,  29  Md.  19,     Explaining  above,  and  refusing 

144;  Seibert  v.  True,   8  Kansas,  52;  relief  to  creditor  where  there  was  sfill 

Saylors  v.   Saylors,  3  Heisk.  (Tenn.)  a  debt  due  from  principal  to  surety,  see 

525;  Seibert  V.  Thompson,  8  Kansas,  First  Congregational  Society  ii.  Snow, 

65;  Branch  t'.  The  Macon  &  Brunswick  1  Cush.  510;  to  same   effect  us  East- 

R.  R.  Co.  2  Woods,  385,  man  v.  Foster,  where  principal  con- 

°  Paris  V.  Hulett,  26  Vt.  308;  Darst  veyed  property  to  trastee,  for  indem- 

»,  Bates,  51  111.  439;  Saylors  v.  Say-  nity  of  surety,  see  Cullum  v.  Branch 

lors,  3  Heisk,  (Tenn.)  525;  Burroughs  Bank  at  Mobile,  23  Ala,  797, 

V.  United  States,  2  Paine,  569;  Haven  ^  Ross  v.  Wilson,  7  Smedes  &  Mar. 

V.  Foley,  18  Mo.  136;  Troy  v.  Smith,  (Miss.)   753;  Carpenter  v.   Bowen,  42 

33  Ala.  469;  Vail  v.  Foster,  4  New  Miss.  23. 
York,  312. 


382  SUBROGATION'. 

all  tlie  parties  to  the  transaction  to  give  Q  a  first  lien  on  the 
premises.  J  and  B  were  then  both  solvent,  but  afterwards  failed, 
at  which  time  the  debt  of  Q  was  unpaid,  as  were  the  acceptances 
of  B  under  the  original  mortgage.  Certain  holders  of  such  ac- 
ceptances filed  a  bill  against  Q  to  subject  the  mortgaged  premises 
to  the  pa^^ment  of  the  acceptances  held  by  them.  Held,  they 
were  not  entitled  to  relief.  The  first  mortgage  was  made  for  the 
personal  security  of  B,  and  while  J  and  B  were  solvent  no  equities 
arose  in  favor  of  the  acceptors,  aad  while  no  such  equities  existed, 
B  had  a  right  to  surrender  the  security  or  make  such  disposition 
of  it  as  he  saw  proper.^ 

§  283.  When  creditor  entitled  to  securities  given  by  prin- 
cipal to  surety  for  his  indemnity. — If  the  principal  confesses  a 
judgment  in  favor  of  the  surety,  for  his  indemnity,  and  the  sure- 
ty afterwards  dies,  and  his  estate  is  thereby  discharged  from  lia- 
bility, it  lias  been  held  that  the  creditor  is  nevertheless  entitled 
to  the  benefit  of  the  judgment.^  Where  a  principal  mortgaged 
property  to  a  surety,  for  his  indemnity,  and  also  to  secure  a  debt 
due  the  surety  and  the  surety  afterwards  became  insolvent  and 
assigned  all  his  effects,  it  was  held  that  the  creditor  (to  indemnify 
the  surety  against  whose  debt  the  mortgage  had  been  given)  was 
entitled  to  a  preference  in  the  mortgaged  premises,  over  the  as- 
signee holding  the  debt  due  from  the  principal  to  the  surety,  also 
secured  by  the  mortgage.'  A  mortgage  was  given  a  surety,  by 
the  principal,  to  secure  him  against  loss,  on  account  of  several 
claims  for  which  he  was  surety,  and  also  to  secure  a  debt  due  the 
surety  by  the  principal.  The  surety  was  discharged  from  his  lia- 
bility as  such,  by  time  given  the  principal.  Held,  that  the  pro- 
ceeds of  the  mortgaged  property  should  be  applied  ])ro  rata  to 
the  payment  of  all  the  debts."  A  being  the  surety  of  B  in  two 
obligations,  B  entered  into  a  bond,  with  C  as  his  surety,  conditioned 
to  save  and  keep  harmless  A,  on  account  of  his  suretyship,  and  to 

Uones  V.  Quinnipaick  Bank,  29  Ct.  "TenEyck  v.   Holmes,  3  Sandf.  Ch. 

25.  R.  428.     To  a  similar  effect,  and  hold- 

'^  Crosby  v.  Crafts,  5  Hun.  (N.  Y)  327.  ing  that  the  right  of  the  creditor  to  the 

To  a  similar  effect,  and  holding  that  security  does  not  depend  upon  the  lia- 

surety  may,  before  paying  the  debt,  as-  bility  of  the  surety  to  be  damnified,  see 

sign  such  a  judgment  to  the  creditor,  Ohio  Life  Ins.  Co.  v.  Ledyard,  8  Ala. 

and  that  the  creditor  may  enforce  it,  866. 

see  Bank  v.  Douglass,  4  Watts  (Pa.)  *  Helm's  Admr.  v.  Young,  9  B.  Mon. 

95.  (Ky.)  b94. 


CREDITOK   ENTITLED   TO    INDEMNITY    GIVEN    SURETY.  383 

obtain  liis  release  from  the  two  obligations.  A  was  sued  on  the 
obligations,  and  judgment  was  recovered  against  him,  and  he  be- 
ing insolvent,  the  bond  of  indemnity  was  assigned  to  the  creditor, 
and  he  sued  C  on  it,  claiming  that  it  was  a  fund  in  the  hands  of 
A  for  the  payment  of  the  debt,  which  he  was  entitled  to  reach. 
The  court  said  that  the  bond  of  indemnity  was  not  given  simply 
for  the  personal  indemnity  of  the  surety,  for  the  release  of  the 
two  obligations  could  not  be  obtained  without  the  consent  of  the 
creditor,  and  as  the  two  obligations  had  not  been  released,  it  was 
held  the  bond  of  indemnity  was  forfeited,  and  the  creditor  might 
recover  on  it  against  C.^  When  a  mortgage,  given  by  a  princi- 
pal to  his  surety  for  indemnity,  is  informally  assigned  by  the 
surety  to  the  creditor,  such  assignment  will  be  uplield  in  equity.'" 
A  guarantied  the  debt  of  B  by  parol,  and  B  placed  in  A's  hands, 
collaterals  for  his  indemnity,  from  which  A  realized  a  sum  in 
money.  The  creditor  sued  A  for  the  debt.  Held,  he  could  not 
recover  on  the  guaranty,  because  of  the  statute  of  frauds,  but 
could  recover  for  money  had  and  received,  to  the  extent  of  the 
money  received  by  A  as  above.^  Where  joint  judgment  is  re- 
covered against  princi])al  and  surety,  and  the  lands  of  the  princi- 
pal are  sold  at  sheriff's  sale,  and  tlie  proceeds  aj^plied  to  the  pay- 
ment of  such  judgment,  the  judgment  creditors  of  the  surety 
have  an  equity  to  be  subrogated,  as  against  the  principal,  to  the  debt 
thus  created  against  the  principal  and  in  favor  of  the  surety,  and  to 
the  lien  of  the  judgment  against  the  principal  and  surety,  and  to 
have  priority  of  claim  in  the  order  of  their  respective  judgments  to 
the  extent  that  they  were  deprived  of  the  proceeds  of  the  surety's 
lands  by  reason  of  the  judgment  against  the  principal  and  surety. 
"  Where  the  joint  debt  ought  to  be  paid  by  one  of  the  debtors,  a 
court  of  equity  will  so  marshal  the  securities  as  to  compel  the 
joint  creditors  to  have  recourse  to  that  debtor,  so  as  to  leave  the 
estate  of  the  other  open  to  the  claims  of  his  individual  creditors; 
or,  if  the  joint  creditor  has  already  appropriated  the  latter  fund,  it 
will  permit  the  several  creditors  to  come  in  jpro  tanto,  by  way  of 
subrogation,  upon  the  fund  which  ought  to  have  paid  the  joint 
debt."  *  Where  a  debtor  conveyed  to  trustees  certain  property 
for  the  indemnity  of  various  sureties  of  his  who  were  bound  for 

'  King  V.  Harman's   Heirs,   6    La.  *  Jack  v.  Morrison,  48  Pa.  St.  113. 

(Curry)  607.  •»Neff  v.  Miller,  8  Pa.  St.  347. 

'Carlisle  v.  Wilkins'  Admr.  51  Ala. 
371. 


384  SUBEOGATION. 

different  debts,  it  was  lield  that  one  of  the  creditors  might,  in  his 
own  name,  sustain  a  suit  in  chancery  for  the  distribution  of  tlie 
property  against  all  other  parties  concerned.^  Where  the  guardian 
of  several  wards  gave  a  separate  bond  to  eacli  ward,  with  differ- 
ent sureties  on  each  bond,  and  conveyed  to  each  of  the  sureties 
separately  different  pieces  of  property  for  their  indemnity,  it  was 
held  that  the  wards  could  not  bring  a  joint  suit  against  the  surties 
jointly  for  subrogation.' 

§  284.  Creditor  cannot  avail  himself  of  personal  indemnity 
given  surety  unless  surety  could  have  done  so. — The  right  of  the 
creditor  to  reach  securities  provided  by  the  principal  for  the  in- 
demnity of  the  surety,  dej^ends  in  many  cases  on  the  terms  of 
the  agreement  for  indemnity,  and  the  time  when  such  right 
of  the  creditor  is  sought  to  be  enforced.  The  law  on  this  sub- 
ject  lias  been  thus  well  summarized:  "The  extent  of  the  bur- 
dens, trusts  and  conditions  annexed  to  a  grant,  is  to  be  learned  by 
reading  the  instrument  and  gathering  from  it  its  intent  and  pur- 
pose. *  In  subrogating  *  the  creditor  to  the  surety's  place 
as  to  any  indemnity  given  him,  there  can  be  neither  increase  or 
diminution  of  rights,  as  they  actually  existed  in  favor  of  the 
surety.  If,  therefore,  the  indemnity  is  against  a  contingent  lia- 
bility, there  can  be  no  substitution  until  the  liability  has  become 
absolute.  *  If  a  mortgage  or  other  security  is  given  to  the 
surety  not  to  secure  the  debt  or  provide  a  fund  for  its  payment, 
but  to  save  harmless  from  a  contingent  liability  or  ]oss,  that  con- 
tingency must  come  or  the  injury  be  sustained,  before  a  right  to 
the  indemnity  inures  to  the  creditor.  "Where  the  contract  is  for 
the  personal  benelit  of  the  surety  in  023position  to  tlie  idea  of  a 
pledge  for  the  debt  or  providing  means  for  its  payment,  the  cred- 
itor can  claim  only  such  rights  and  remedies  as  the  surety  had. 
If  he  has  not  been  damnified  and  the  conditions  of  the  mortgage 
or  other  contract  of  indemnity  are  unbroken,  the  surety  himself 
could  assert  no  remedy,  nor  could  the  creditor  claimins:  through 
him  and  in  his  stead  have  substitution.  *  If,  however,  the 
principal  has  assigned  a  fund  for  the  payment  of  the  debt  and 
the  surety  pays  it,  he  is  entitled  to  reimbursement  out  of  the 
fund."  ^     Where  a  debtor  mortgaged  property  to  his  indorser  to 

'  Bank  of  United  States  v.  Stewart,  ^  Oshorn  v.  Noble,  46  Miss.  449,  per 

4  Dana  (Ky.)  27.  Simrall,  J.,  where  a  creditor  was  held 

'  Norton  v.  Miller,  25  Ark.  108.  not  entitled  to  subrogation  to  a  fund 


SUBROGATION    TO    PEKSOXAL    INDEMNITY    OF    SURETY.  3S5 

indemnify  him  against  liability  on  liis  indorsement,  it  was  held 
that  the  creditors  could  not  in  chancery  have  the  mortgage  fore- 
closed where  no  judgment  had  been  rendered  against  either  prin- 
cipal or  surety,  and  both  were  solvent.  The  court  said  the  mort- 
gage was  not  given  to  secure  the  debt  nor  to  raise  a  fund  for  its 
payment,  or  the  mortgagee  might  be  held  to  be  a  trustee  for  the 
creditors;  and  proceeded  as  follows:  The  creditors  "seek  in  this 
case  to  be  substituted  to  the  rights  of  *  (the  surety)  in  a  con- 
tract made  with  him  personally  for  his  own  benefit,  and  they  can 
only  claim  such  rights  as  have  inured  to  him;  he  has  not  been 
damnified;  the  conditions  of  the  mortgage  are  unbroken  as  to 
him;  he  can  yet  assert  no  claim  under  them  nor  could  * 
(the  creditors)  by  being  substituted  to  his  place." ' 

§  2S5.  Creditor  cannot  be  subrogated  to  personal  indemnity 
of  surety  after  surety  is  discharged. — Where  the  security  is  mere- 
ly personal  to  the  surety,  and  cannot  be  construed  as  a  pledge  for 
the  security  of  the  debt,  if  the  surety  is  discharged  from  liability 
the  creditor  cannot  afterwards  take  anything  by  subrogation  to 
his  rights.  The  obvious  reason  for  this  is  tliat  the  surety  being 
■discharged  cannot  be  damnified,  and  the  creditor  claiming  only 
through  the  surety,  and  occupying  his  place,  can  have  no  greater 
rights  than  he.  If,  on  the  other  hand,  the  security  is  a  pledge  for 
the  payment  of  the  debt  as  well  as  a  personal  indemnity  for  the 
surety,  tlie  discharge  of  the  surety  will  not  deprive  the  creditor  ^ 
of  a  claim  on  the  security  for  the  payment  of  the  debt.  This  re- 
sult is  not  in  such  case  due  to  a  subrogation  of  the  creditor  to  the 
rights  of  the  surety,  but  to  the  fact  that  the  principal  has  created 
a  trust  fund  for  tlie  payment  of  the  debt,  and  the  creditor  may 
enforce  such  trust  notwithstanding  the  discharge  of  the  surety. 
Certain  parties  became  sureties  of  another  on  notes  for  property 
purchased,  and  took  a  chattel  mortgage  from  their  principal  for  in- 
demnity against  loss  on  account  of  that  and  other  suretyship  ob- 

provided  for  the  persona,!  indemnity  er,  18  Ohio,  35.     To  the  same  effect, 

of  the  surety.     To  similar  effect,  see  where  a  trust  deed  was  given  condi- 

Homer  v.  Savings  Bank,  7  Ct.  478;  see,  tioned  for  the  indemnity  of  the  surety 

also,   VanOrden   r.  Durham,  35  Cal.  incase  judgment  was    had  against 

13G.    Holding  that  creditor  whose  debt  him  and  no  judgment  was  rendered, 

is  extinguished  is  not  entitled  to  sub-  but  both  principal  and  surety  were  dis- 

rogation  to  indemnity  of  surety,  Wat-  charged     in    bankruptcy.     Bush     r. 

son  V.  Rose's  Exrs.  51  Ala.  292.  Stamps,  26  Miss.  463;  Bibb  v.  Martin, 

'  Ohio  Life  Ins.  k  I'rust  Co.  r.  Eeed-  14  Smedes  &  Mar.(Miss.)  87. 
25 


386  SUBKOGATIOK. 

ligations  assumed  by  them  for  the  principah  The  principal  pur- 
chased more  goods  from  the  creditor  upon  the  representation  that 
he  would  get  the  notes  of  the  sureties  for  both  purchases,  and  the 
creditor  thereupon  canceled  the  notes  which  the  sureties  had 
signed,  and  bills  were  sent  to  the  sureties  for  the  whole  amount  of 
the  purchases,  which  thej  refused  to  accept.  Held,  that  the  sure- 
ties being  discharged  the  creditor  could  not  be  subrogated  to,  and 
enforce  the  mortgages  given  for,  their  personal  indemnity.^  A 
surety  received  a  promissory  note  from  the  principal  as  an  indem- 
nity against  loss  from  an  indorsement.  This  note  he  afterwards 
handed  over  to  the  creditor  as  a  collateral  security  for  the  debt, 
and  the  creditor  brought  suit  on  it.  Pending  such  suit  the 
statute  of  limitations  became  a  bar  to  a  recovery  against  the  surety 
on  the  note  which  he  had  endorsed.  This  fact  was  pleaded  puis 
darrein  continuance,  and  it  was  held  that  as  the  creditor  took  the 
note  as  collateral  security  merely,  and  stood  in  the  place  of  the 
surety,  and  the  surety  had  been  released  from  liability  and  could 
not  recover  on  the  note  for  his  indemnity,  the  creditor  could  not 
recover  on  it.'  Wlien  the  rents  arising  from  certain  property 
were  pledged  to  a  surety  for  the  payment  of  the  debt,  and  the 
surety  afterwards  became  invested  with  the  legal  title  to  the  prop- 
erty, it  was  held  that  the  pledge  was  merged  and  could  not  after- 
wards be  asserted  by  the  creditor.' 

'  Constant  v.  Matteson,  22  111.  546.  ty,  see  Havens  v.  Foudry,  4  Met.  (Ky.) 

*  Russell  V.  LaRoque,  13  Ala.  149.  247;  Bank  o  f  Virginia  r.  Boisseau,  12 

For  other  cases,  holding  that  when  Leigh  (Va.)  387;    Hopewell  v.  Bank  of 

surety  is  discharged  creditorcannot  en-  Cumberland,  10  Leigh  (Va.)  206. 

force  a  security  given  for  his  indemni-  ^Rankin  v.  Wil  sey,  17  Iowa,  463. 


CHAPTER  XIII. 


OF   THE    DISCHAKGE   OF   THE    SURETY   OR   GUARANTOR   BY 

PAYMENT. 


Section. 

How  payments  made  by  the  prin- 
cipal should  be  applied     .        .  286 

How  the  law  will  apply  payments 
in  certain  cases  .        .        .  287 

"What  will  amount  to  payment. 
Special  instances       .        .        .  288 

If  debt  once  paid,  it  cannot  be  re- 
vived against  surety.  Special 
instances 289 

When  payment  made  by  principal 
and  accepted  by  creditor  does 
not  discharge  surety  .        .  290 

Funds  which  have  been  appropri- 
ated by  principal  for  the  pay- 
ment of  the  debt,  cannot  be  di- 
verted from  that  purpose  with- 
out consent  of  surety         .        .  291 


Section. 

When  debt  is  paid  by  principal, 
surety  discharged,  no  matter 
where  money  came  from.  When 
creditor  obhged  to  retain  money 
in  his  hands  belonging  to  prin- 
cipal   292 

Cases  holding  surety  discharged 
by  pajTnent  under  special  cir- 
cumstances        ....  293 

How  payments  by  officer  applied 
when  he  has  two  different  sets 
of  sureties         ....  294 

If  principal  tender  amount  of 
debt  to  creditor,  who  refuses 
to  receive  it,  surety  is  dis- 
charged      295 


§  286.  How  payments  made  by  the  principal  should  be  ap- 
plied.— When  the  liability  of  a  surety  or  guarantor  is  for  tlie 
debt  of  another,  such  liability  of  course  ceases  upon  the  payment 
of  the  debt.  With  reference  to  the  application  of  payments, 
the  general  and  well  known  rule  is,  that  a  debtor  who  owes  sev- 
eral debts  to  the  same  creditor  has  the  right  at  the  time  of  mak- 
ing a  payment,  to  apply  it  to  any  one  of  the  debts  he  pleases.  If 
he  makes  no  appropriation  of  a  general  payment,  the  creditor 
may  apply  it  as  he  sees  fit.  And  where  it  is  not  appropriated  bj 
either  the  debtor  or  the  creditor,  the  law  will  apply  it  according 
to  the  justice  and  equity  of  the  case.  The  mere  fact  that  there 
is  a  surety  for  one  of  the  debts  will  not  make  any  difference  in 
this  rule,  when  a  payment  is  made  by  the  principal.'  Where 
the  principal  debtor  pays  part  of  the  principal  sum  due,  and  the 
whole  of  a   highly  usurious   rate  of  interest   stipulated  for,  the 

'  Allen  t?.  Culver,  3  Denio,  284;  Pembertont?.  Cakes,  4  Russell,  154. 

(387) 


388  DISCHARGE    OF    SURETY    BY    PAYMENT. 

surety  is  bound  by  this  application  of  payment.^  Where  a  mort- 
gage or  other  security  is  given  by  a  principal  to  secure  several 
debts  due  one  creditor,  for  one  of  which  debts  a  surety  is  liable, 
and  there  is  no  agreement  nor  anything  to  indicate  the  intent  of 
the  parties  as  to  how  the  proceeds  of  the  security  shall  be  a]3j)lied, 
the  creditor  may  aj)ply  such  proceeds  to  the  payment  of 
the  debts,  for  which  the  surety  is  not  liable.^  "Where 
three  notes  are  secured  by  a  trust  deed,  and  the  two  first 
due  are  also  signed  by  a  surety,  the  creditor  may,  after 
the  maturity  of  all  the  notes,  apply  the  proceeds  of  the  trust 
premises  to  the  payment  of  the  note  last  due,  on  which  there  is 
no  surety.  The  fact  that  he  required  sureties  on  the  two  first 
notes,  was  evidence  that  he  was  not  satisfied  with  the  security  of 
the  trust  deed.^  Principal  and  surety  were  liable  for  a  debt,  and 
afterwards  the  principal  obtained  further  advances  from  the  cred- 
itor, at  the  same  depositing  with  him  certain  copper  to  secure  his 
indebtedness,  but  without  specifying  what  indebtedness.  The 
principal  failed,  and  the  creditor,  against  the  objection  of  the 
surety,  applied  the  proceeds  of  the  copper  to  the  payment  of  the 
subsequent  advances.  Held,  he  might  lawfully  do  so.  As  the 
principal  made  no  application  of  the  payment,  the  creditor  had 
the  right  to  apply  it  as  he  pleased,  "  upon  the  ordinary  principle 
which  entitles  a  creditor  in  the  absence  of  any  direction  from  the 
debtor  paying,  to  apply  the  money  he  receives  to  whichever  of 
several  debts  arising  he  pleases."  *  Where  part  of  a  guaranty 
was  as  follows:  "I  guaranty  to  you  the  payment  of  any  debt 
which  he,  the  principal,  may  contract  with  you  from  time  to  time, 
as  a  running  balance  of  account  to  any  amount  not  exceeding 
400Z.,"  and  the  principal  became  indebted  in  625?.,  and  after- 
wards, by  composition  with  his  creditors,  paid  enough  to  reduce 
the  whole  claim  to  35GZ.,  it  was  held  that  the  guarantor  was  enti- 
tled to  a  ratable  proportion  of  the  dividend  paid  by  the  debtor, 

^  Allen  V.  Jones,  8  Minn.  202.  and  another  on  ^vliich  there  is  nosure- 

-  Stamford  Bank  v.  Benedict,  15  Ct.  ty,  it  has  been  held  that  the  proceeds 

437;  Martin  v.  Pope,  6  Ala.  532;  Gas-  must  be  applied  to  the  payment  of  the 

ton  V.  Barney,  11  Ohio  St.  50G.  notes  on  which  there  is  a  surety;  Mer- 

^  Mathews  r.   Switzler,  46  Mo.  301.  rimaek  County  Bank  v.    Brown,    12 

But  where  the  notes  secured  by  the  New  Hamp.  320. 
mortgage  are  part  those  of  the  mort-  *  Per  Dr.   Lushington,  in  the  Bank 

gagor  alone,  on  which  there  is  a  sure-  of   Bengal    v.   Radakissen    Mitter,  4 

ty,  and  part  those  of  the    mortgagor  Moore's  Privy  Council  Cas.  140. 


now   THE   LAW   APPLIES   PAYMENTS.  389 

and  was  only  liable  for  so  much  of  the  4:001.  as  remained  after 
deducting  such  proportion.'  It  has  also  been  held  that  the  as- 
signee of  two  judgments  from  different  plaintiffs  against  the 
same  defendant,  on  the  older  of  which  judgments  there  is  a  sure- 
ty, and  on  the  younger  of  which  there  is  none,  must  apply  the 
money  raised  by  the  sheriff  from  a  sale  of  the  defendant's  prop- 
erty to  the  discharge  of  the  older  judgment.* 

§  287.  How  the  law  will  apply  payments  in  certain  cases. — 
Where  neither  the  principal  debtor  nor  the  creditor  applies  the 
payment,  the  law  will  apply  it  according  to  the  justice  of  the 
case.  A  principal  owed  the  creditor  for  rent  for  three  years,  the 
rent  of  the  first  year  being  secured  by  bond  with  surety.  The 
creditor  owed  the  principal  on  an  account  running  through  the 
three  years,  the  account  of  the  first  year  being  less  than  that 
year's  rent;  and  the  whole  account  being  larger:  Held,  the  whole 
account  should  be  first  appropriated  to  the  first  year's  rent.  The 
court  said  that  where  the  parties  made  no  application  of  payments, 
the  law  would  generally  appropriate  them  to  the  oldest  indebt- 
edness.' Where  an  account  is  delivered  by  an  agent,  in  which 
he  charges  himself  with  a  balance,  and  he  continues  to  receive 
money  for  his  principal,  his  subsequent  payments  are  not  neces- 
sarily to  be  applied  to  the  extinction  of  the  previous  balance 
where  the  subsequent  receipts  are  equal  to  the  subsequent  pa}"^- 
ments ;  and  the  court  left  it  to  the  jury  to  say,  under  all  the  cir- 
cumstances, how  the  payments  should  be  applied."  Security  was 
given  by  a  surety  for  goods  to  be  supplied  to  his  principal,  it  be- 
ing stipulated  that  the  security  should  not  apply  to  a  then  exist- 
ing debt.  Goods  were  subsequently  supplied  to  the  principal, 
and  payments  made  by  him  from  time  to  time,  in  respect  to  some 
of  which  a  discount  was  allowed  for  prompt  payment.  There  was 
no  express  evidence  of  application  of  payments  by  any  one;  but 
the  court  thought,  from  the  course  of  dealing,  that  the  intention 
was  to  apply  the  payments  to  the  latter  items  for  which  the 
surety  was  liable,  and  it  was  held  that  they  should  be  so  applied." 

^Bardwell  v.   Lydall,  7   Bing.  489;  time,  the  first  payments  made  will  be 

Id.  5  Moore  &  Payne,  327 .  applied  to  tlie  oldest  item  of  indebted- 

"^  Simmons  v.  Gates,  56  Ga.  609.  ness,  see  Pemberton  v.  Oakes,  4  Rus- 

^  Hollister  tJ.  Davis,  54  Pa.  St.  508.  sell,  154. 

Holding  that  where  no  application  lias  *Lysaght  v.  Walker,   5  Bligh    (N. 

been  made,  and  there  is  a  running  ac-  R.)  1. 

count,  and  payments  made  from  time  to  ^Maryatts  v.  White,  2  Starkie,  101. 


390  DISCHAKGE   OF   SUEETY   BY    PAYMENT. 

§  288.      What  will   amount  to  payment — Special   instances. — 

Questions  sometimes  arise  as  to  what  constitutes  payment  of  the 
debt.  It  has  been  held  that  a  levy  of  an  execution  on  property 
of  the  principal,  and  advertising  it  for  sale,  is  not  such  a  satisfac- 
tion of  the  debt  as  will  prevent  a  levy  on  property  of  the  prin- 
cipal for  the  same  debt.'  But  it  has  been  held  that  the  imprison- 
ment of  the  principal  on  execution  for  the  debt  is,  so  long  as  it 
continues,  a  satisfaction  of  the  debt,  which  bars  the  creditor  for 
that  time  from  all  other  remedy  therefor.^  If  the  holder  of  a 
note  agree  to  release  the  principal  upon  payment  of  one-half  the 
amount  due,  and  such  payment  is  made,  neither  the  principal  nor 
surety  is  discharged  from  the  balance  of  the  note  because  there  is 
no  consideration  for  the  agreement.^  AVhere  a  party  signs  a  note 
for  a  certain  amount,  for  one-half  of  which  he  is  principal,  and 
for  the  other  half  suret}'',  payment  by  him  of  the  half  for  which 
he  is  principal,  and  a  receipt  by  the  creditor  in  full  for  such  half 
does  not  discharge  him  from  the  other  half.*  It  has  been  held 
that  if  a  party  guaranty  a  mortgage,  and  die,  and  the  mortgage 
afterwards  becomes  the  property  of  his  estate,  the  guaranty  is 
extinguished  and  cannot  thereafter  be  enforced  if  assigned  by  the 
administrator  of  the  estate  to  a  third  person.^  Where  a  surety  pays 
the  creditor  a  certain  amount  to  release  him  from  obligation  as  such, 
the  amount  so  paid  cannot  be  applied  as  a  paj^ment  on  the  debt  in 
favor  of  the  principal."  A  surety  may  pay  the  debt  for  which  he  is 
contingently  liable,  so  as  to  satisfy  the  requirements  of  section  nine- 
teen of  the  United  States  bankrupt  act  by  giving  his  individual 
note  therefor,,  if  such  note  is  expressly  received  as  payment.'' 

§  289.  If  debt  once  paid,  it  cannot  be  revived  against 
surety — Special  instances. — When  a  bond  upon  which  a  surety 
is  liable  has  once  been  paid  by  the  application  of  certain  funds 
to  that  purpose,  as  agreed  between  the  principal  and  ci-editor,  they 
cannot  afterwards  by  agreement  between  themselves  apply  the 
sum  received  in  payment  to  another  purpose  so  as  to  charge  a 
surety  on  the  bond.^     Where  the  principal  in  a  note  pays  it  with 

'  Fuller  V.  Loring,  42  Me.  4S1.     To  ^Sterling  v.  Stewart,  74  Pa.  St.  445. 

same  effect,  where  creditor  distrained  *  Fluck  i'.  Eager,  51  Pa.  St.  459. 

property   of   principal    for    rent,   see  *  Peer  r.  Kean,  14  Mich.  354. 

King  V.  Blackmore.  72  Pa.  St.  347.  ■>  In  re  Momll,  2  Sawyer,  356. 

^  Koening  v.  Steckel,  58  N.  Y.  475.  »  Woodman  v.  Mooring,  3  Dev.  Law 

^Oberndorff  v.  Union  Bank,  31  Md.  (Nor.  Car.)  237.     To  same  effect,  see 

126.  Gibson  v.  Rix,  32  Vt.  824. 


WHEN  PAYMENT  BY  PKINCIPAL  DOES  NOT  DISCHARGE  SURETY.    391 

money  furiiislied  him  by  a  tliird  party,  and  takes  it  up  without 
any  assignment  of  it  being  made,  the  debt  is  discharged,  and  the 
party  wlio  fuiiiished  the  money  cannot  afterwards  recover  on  the 
note  against  the  surety  therein.'  So  a  surety  who  is  directly  and 
originally  liable  on  a  note,  cannot,  after  he  has  paid  such  note, 
reissue  it  so  as  to  bind  any  but  himself,  but  it  may  be  otherwise 
if  he  is  an  indorser  and  only  secondarily  liable.''  A  principal 
delivered  to  the  creditor  certain  hogs,  more  than  sufficient  to  pay 
the  debt,  under  an  agreement  that  so  mucli  of  the  proceeds  as 
were  sufficient  to  pay  the  debt  should  be  applied  to  that  purpose. 
Afterwards,  without  the  consent  of  the  surety,  the  creditor  suf- 
fered the  principal  to  sell  the  hogs  and  retain  a  portion  of  the 
proceeds,  leaving  a  part  of  the  debt  unsatisfied.  Held,  the  surety 
was  discharged,  as  the  facts  constituted  a  payment  of  the  original 
debt,  and  amounted  to  a  new  loan  of  a  part  of  the  proceeds  of  the 
hoses  to  the  principal.'  Where  a  treasurer  was  a  banker  and  is- 
sued his  own  notes  as  money,  and  such  notes  were  received  as 
payment  of  money  for  which  he  was  accountable,  and  the  treas- 
urer failed,  aud  such  notes  were  not  paid,  it  was  held  that  the 
payments  in  these  notes  constituted  a  sufficient  payment  to  dis- 
charge the  sureties,  as  the  parties  receiving  the  notes  might  have 
had  gold  if  tliey  had  demanded  it,* 

§  200.  "When  payment  made  by  principal  and  accepted  by 
creditor,  does  not  discharge  surety. — Under  certain  circumstances 
payment  made  by  a  principal  and  accepted  by  the  creditor,  but 
from  which  the  creditor  derives  no  benefit,  will  not  discharge  the 
surety.  Thus,  the  payee  of  a  promissory  note  signed  by  a  prin- 
cipal and  surety,  accepted  the  amount  thereof  from  the  principal 
in  good  faith,  and  without  notice,  that  the  payment  was  a  fraudu- 
lent preference.  The  principal  afterwards  entered  into  a  compo- 
sition deed  for  the  benefit  of  his  creditors;  the  trustees  under  the 
deed  avoided  the  payment  as  a  fraudulent  preference,  and  the 
payee  handed  over  the  amount  to  the  trustees.  The  payee  then 
sued  the  surety  on  the  note,  and  it  was  held  he  was  liable.  The 
court  said:  "  The  act  of  the  creditor  which  discharges  the  surety 
must  be  an  act  involving  something  inequitable  at  the  time  it  is 

»Eastmant>.  Plumer,  32NewHamp,  ^j^ui^ie^,.   Norman,   7   Bush  (Ky.) 

238.  582. 

*  Hopkins  r.  Farwell,  32  New  Hamp.  *  Guardians  of  Litchfield  Union  r. 

425.  Green,  1  Hurl.  &  Nor.  884. 


392  DISCHARGE    OF    SURETY    BY    PAYMENT. 

done,  and  wliicli  interferes  witli  tlie  rights  of  a  surety;  an  ac- 
ceptance of  money  from  a  debtor,  which  the  creditor  thought  at 
the  time  he  accepted  it  was  good^  and  valid  payment,  cannot 
therefore  discharge  the  surety.  The  creditor  under  present  cir- 
cumstances could  not  have  refused  to  accept  the  money;  its  ac- 
ceptance M-as  an  advantage,  not  an  injury  to  the  surety."  ^  The 
same  thing  was  held  where  a  note  signed  by  principal  and  surety 
was  paid  by  a  note  which  was  void  for  usury,  and  was  taken  up 
and  canceled.  The  court,  after  reviewing  manj^  cases,  said:  "  The 
principle  to  be  extracted  from  these  cases  is,  that  the  usurious 
contract  being  utterly  vc»id,  does  not  extinguish  or  aifect  the 
original  valid  contract.  In  other  words,  that  a  non-existing  con- 
tract cannot  extinguish  an  entity.  ^'  There  must  be  two  valid 
subsisting  obligations,  the  one  to  be  extinguished  and  the  other 
to  be  substituted  for  it.  Hence,  if  at  the  time  of  the  new  obli- 
tion  the  former  constituted  no  debt,  or  if,  on  the  otlier  hand,  the 
new  obi i  oration  was  void,  there  was  no  novation.  The  effect  of 
novation  is  that  the  prior  obligation,  together  with  its  accessions 
and  privileges,  is  destroyed,  but  novation  will  not  take  place  if 
the  second  obligation  is  void."  ^  But  where  principal  and  surety 
are  liable  for  a  debt,  and  execution  is  issued  and  levied  on  prop- 
erty which  the  principal  points  out  as  his,  and  such  property  is 
purchased  by  the  creditor,  and  the  execution  is  returned  satisfied 
in  full,  it  has  been  held,  that  the  surety  is  discharged,  even  though 
it  turn  out  that  other  creditors  have  a  prior  lien  on  the  property, 
and  the  creditor  who  purchased  it  afterwards  loses  all  benefit 
from  it  by  reason  of  the  enforcement  of  such  prior  lien.  The 
decision  is  put  upon  the  ground  that,  whenever  by  an  arrangement 
between  the  principal  and  creditor,  the  creditor  accepts  anything 
in  satisfaction  of  the  debt,  it  is  thereby  discharged  and  cannot  be 
revived  against  the  surety.^ 

§  291.      Funds  ■which  have  been  appropriated  by  the  principal 
for  the  payment   of  the   debt,  cannot  be   diverted   from   that   pur- 

^  Petty?'.  Cooke,  Law  Rep.  6  Queen's  -  Mitchell  v.  Gotten,  Exr.  2  Florida, 

Bench,  790.    To  the  same  effect,  where  136,  per  Douglas,  C.  J.     To  similar 

money  paid  by  a  principal  to  the  cred  -  effect,   see   Williams  v.   Gilchrist,  11 

itor  is  recovered   by  the   assignee  in  New  Hamp.  535. 

bankruptcy  of  the  principal  from  the  ^  Newman    v.    Hazlerigg,    1    Bush 

creditor,    see  Watson  v.   Poague,  42  (Ky.)  412. 
Iowa,  582;  Piitchard  v.  Hitchcock,  6 
Man.  &  Gr.  151. 


FUNDS  APPEOPKIATED  FOK  PAYMENT  OF  DEBT.       393 

pose  without  consent  of  surety. — Collaterals  whicli  are  deposited 
bj  a  jDrincipal  with  a  creditor,  for  the  security  of  a  debt  for  which 
a  surety  is  liable,  cannot  afterwards,  without  the  consent  of  the 
surety,  be  applied  to  the  payment  of  another  debt,  which  the 
principal  subsequently  becomes  liable  to  pay  the  creditor.*  The 
plaintiff  was  surety  on  a  promissory  note  to  the  defendants,  for  a 
sum  lent  by  them  to  their  tenant,  and  the  defendants,  also,  with- 
out the  knowledge  of  the  plaintiff,  took  a  mortga_o^e  of  the  ten- 
ant's furniture  to  secure  the  same  debt.  The  defendants  after- 
wards, under  a  distress  proceeding,  took  the  same  furniture  for 
arreai's  of  rent  due  from  the  tenant  to  the  defendants.  Held, 
that  the  proceeds  of  the  furniture  were  first  applicable  to  the 
payment  of  the  note,  and  the  defendants  could  not,  as  against 
the  surety,  apply  them  in  payment  of  the  rent,  and  this  upon  the 
principle  that  a  surety  is  entitled  to  the  benefit  of  all  securities 
lield  by  the  creditor  for  the  payment  of  the  debt,  whether  he  has 
notice  of  them  or  not.^  In  holding  the  same  thing,  another  court 
said:  "The  equity  which  entitles  a  surety  to  the  benefit  of  all 
securities  of  the  principal  deposited  with  the  creditor  to  assure 
payment  of  the  debt,  is  wholly  independent  of  any  contract  be- 
tween the  surety  and  the  creditor,  and  indeed  of  any  knowledge 
on  the  part  of  the  surety  of  the  deposit  of  the  securities.  *  In 
such  case,  the  creditor  is  regarded  as  a  trustee  of  the  security  de- 
posited with  him  for  the  benefit  of  all  parties  known  by  him  to 
be  interested  in  it,  and  is  bound  to  administer  the  trust  created 
by  the  deposit,  unless  discharged  by  the  surety,  m  his  relief  as 
well  as  in  accordance  with  his  own  interests  and  those  of  the 
princij)al.  It  follows  that  any  application  of  the  security  by  the 
creditor  to  other  purposes  than  those  marked  out  by  the  terms  of 
the  deposit,  or  any  decrease  of  its  value  by  means  of  his  negli- 
gence or  mistake,  discharges  the  surety  from  liability  to  him  in 
that  character  to  the  extent  of  the  misapplication,  or  decrease  of 
value  thus  occasioned."  ^  AVhere  a  principal  agreed  with  his  sure- 
ties that  the  proceeds  of  certain  bark  should  be  applied  to  the 
payment  of  the  debt,  and  the  creditor  assented  that  it  should  be 
so  applied,  but  was  no  further  a  party  to  the  agreement,  it  was 

'  Donally  v.  Wilson,   5  Leigh  (Va.)  affirmed,  Peaii  v.  Deacon,  1  De  Gex& 

329.    To  a  similar  effect,  see  Mellendy  Jones,  461. 

V.  Austin,  69  111.  15.  ^  Hidden  v.  Bishop,  5  Rhode  Is.  29, 

*  Pearl  v.  Deacon,  24  Beavan,  186;  per  Ames,  C.  J. 


394  DISCIIAEGE   OF    SURETY    BY    PAYMENT. 

held  that  such  proceeds  could  not  aftenvards,  without  the  consent 
of  the  sureties,  be  diverted  to  the  payment  of  another  debt.  The 
court  said:  "If  he  (the  creditor)  has  in  any  way  assented  to  the 
application  of  the  fund  to  the  particular  debt,  with  notice  that 
sucli  direction  w^as  given  to  it  to  indemnify  sureties,  or  if  he  re- 
ceived the  fund  with  that  understanding,  he  has  acquiesced  in  the 
agreement  of  the  principal  with  his  sureties,  and  it  is  not  in  the 
power  of  either  to  change  it  without  the  assent  of  the  others."  ^ 
§  292.  "When  debt  is  paid  by  principal,  surety  discharged,  no 
matter  ■where  money  came  from — When  creditor  obliged  to  retain 
money  in  his  hands  belonging  to  principal. — The  original  de- 
fendants in  a  supersedeas  judgment  borrowed  the  money  from  A 
to  pay  the  judgment,  and  paid  it,  at  the  same  time  having  it  as- 
signed to  A.  Held,  the  sureties  in  the  supersedeas  were  dis- 
charged. Payment  by  the  principal,  no  matter  wlierehe  got  the 
money,  discharged  the  sureties.  The  principal  had  no  authority 
"  to  pledge  the  responsibility  of  tlie  super^eders  who  had  become 
his  sureties,  and  whom  in  law  and  justice  he  was  bound  to  save 
harmless."^  Where  a  judgment  against  principal  and  surety 
was  transferred  to  a  third  person,  who  paid  for  it  with  money 
borrowed  on  the  note  of  the  principal,  it  was  held  that  the  judg- 
ment must  be  regarded  as  paid,  and  equity  would  restrain  its  col- 
lection from  the  surety.'  Where  the  administrator  of  an  estate 
sued  the  surety  on  a  note  23ayable  to  the  deceased,  and  the  prin- 
cipal in  the  note  was  an  heir  of  the  deceased  and  entitled  to  a 
share  in  the  estate,  and  was  insolvent,  it  was  held  the  admin- 
istrator had  a  right  to  apj^ly  the  i3rincipars  share  in  the  estate  to 
the  payment  of  the  note,  and  would  be  obliged  to  do  so  before 
proceeding  against  the  surety.*  A  bank  held  the  note  of  a  prin- 
cipal and  surety,  and  shortly  after  the  note  became  due  it  had 
funds  in  its  possession  belonging  to  the  principal,  wdiicli  it 
did  not  aj)ply  (nor  did  it  appear  that  it  had  smj  special  right  to 
apply)  to  the  discharge  of  the  note,  and  did  not  communicate  to 
the  surety  for  three  years  the  ftict  that  the  note  was  not  paid;  it 
was  held  that  the  surety  was  not  discharged.  The  Court  said: 
"  It  would  be  essentially  altering  the  position  of  parties  to  estab- 

'  Baugher's  Exrs.  v.  Duphom,  9  Gill  ^  pelch  v.  Lee,  15  Wis.  265. 

(Md.)  814,  per  Frick,  J.  "  Wright  v,  Austin,  56  Bai'b.  (N.Y.) 

^  Burnet  v.  Courts,  5  Harr.  &  Johns  13 
(Md.)  78,  per  Dorsey,  J. 


SPECIAI.    CIRCUMSTANCES.  895 

lisli  that,  because  a  banker,  who  holds  a  note  of  a  third  person 
for  a  ciistomer,  has  a  balance  in  his  hands  in  the  customer's  favor, 
at  the  maturity  of  the  note  such  third  person  is  thereby  dis- 
charged, if  it  turns  out  that  the  note  was  given  by  him  as 
surety."  ^ 

§  293.  Cases  holding  surety  discharged  by  payment  urlder 
special  circumstances. — A  guaranty  was  as  follows:  "Wm.  P. 
Wilson  has  this  day  purchased  of  K.  S.  Eddy  &  Co.  $617.35  dry 
goods,  and  I  bind  myself  to  pay  to  said  E..  S.  Eddy  &  Co.,  or  see 
that  said  Wilson  does,  the  sum  of  $400  within  90  days  from  this 
date."  Within  the  ninety  days  Wilson  paid  Eddy  &  Co.  $200. 
Held,  this  should  be  applied  on  the  sum  due  on  the  guaranty.'' 
A  statute  gave  the  United  States  priority  over  the  other  creditors 
of  revenue  officers.  Such  an  officer  had  given  an  official  bond 
with  sureties  for  $10,000.  Being  largely  indebted  to  the  govern- 
ment, he  made  a  trust  deed  of  his  property  to  secure  the  United 
States,  and  left  $10,000  in  a  trunk  for  his  sureties,  with  directions 
that  they  should  take  it  and  relieve  themselves  from  liability. 
They  took  the  money  and  paid  it  to  the  United  States  in  exonera- 
tion of  their  liability,  and  took  up  their  bond,  the  officers  of  the 
United  States  not  knowing  where  the  money  came  from.  Held, 
the  sureties  were  discharged,  for  while  the  United  States  was  a 
preferred  creditor,  yet  no  one  part  of  its  debt  was  more  preferred 
than  another,  and  the  principal  might  have  applied  the  $10,000 
himself  in  discharirina'  the  sureties  if  he  had  seen  fit.^  A  banker 
held  two  notes,  both  for  the  same  amount,  signed  by  A,  one  of 
which  was  signed  by  B  as  surety,  and  this  note  was  due  seven  days 
after  the  other.  The  day  after  the  first  note  became  due,  A  called 
to  pay  it,  and  paid  the  amount,  but  the  note  on  which  B  was 
surety  was  handed  him  by  mistake,  and  the  indorsement  of  the 
payee  canceled.  A  took  the  note  and  kept  it  five  months,  and  in 
the  meantime  both  he  and  the  payee  failed.  Held,  the  surety  was 
discharged.  The  long  acquiescence  in  the  payment  amounted  to 
a  ratification.  The  surety  during  all  that  time  might  have  sup- 
posed the  debt  paid,  and  been  lulled  into  security,  and  injured.* 

^Strong  V.  Foster,  17   Com.  Bench  ^ Brown  v.   Haggerty,   26  111.  469. 

(8  J.  Scott)  201.  Holding  that  parol  evidence  is  compe- 

^  Eddy  V.  Sturgeon,  15  Mo.  198.  tent  to  show  that  a  bond  was  given  as 

2  United  States  v.  Cochran,  2  Brock-  collateral  security  for  a  debt,  and  that 

enbrough,  274.  the  debt  is  paid,  see  Chester  v.  The 


396  DISCHARGE    OF    SURETY    BY    TAYJIENT. 

§   294.      How  payments    by   oSicer  applied   when   he   has  two 
different  sets  of  sureties. — Where  tliere  are  different  sets  of  sure- 
ties for  the  same  olHcer,  covering  ditierent  periods  of  time,  and 
payments  are  made  by  liim,  the  following  has  been  held  to  be  the 
rule  as  to  the  manner  in  which  they  shall  be  applied:     "  First,  as 
the  debtor  may  direct,  at  or  before  the  time  of  making  such  pay- 
ment, and  such  direction  may  be  given  expressly  or  by  implica- 
tion.    Secondly,  if  the  debtor  give  no  such  direction,  then  the 
creditor  may  make  the  application  according  to  his  pleasure,  and 
he  may  make  it  either  at  the  time  of  such  payment  or  afterwards, 
before  the  commencement  of  any  controversy  on  the  subject, 
thongh  after  he  has  once  made  the  application,  he  cannot  change 
it  to  another  without  the  consent  of  all  other  persons  concerned. 
Such  application  by  a  creditor  may  also  be  made  expressly  or 
bv  implication.     *     Thirdly,  if  neither  the  debtor  nor  the  creditor 
make  the  application,  then  the  law  will  make  it  according  to  the 
circumstances  of  each  particular  case,  and  if  there  be  no  other 
controlling  circumstance  the  application  wall  be  made  according 
to  the  order  of  time,  paying  first  the  oldest  debt."     But,  "if 
debts  are  due  by  a  collector  or  other  receiver  of  money,  under 
bonds,  wdth  diiferent  sets  of  sureties  (and  no  application  of  a  pay- 
ment by  the  principal  is  made  by  him),  then  the  law  will  so 
apply  the  payments,  if  possible,  as  that  the  money  collected 
under   one  bond   shall    be   applied  to  the  relief  of  the    sure- 
ties   in  that   bond,     ^     and  the   creditor   in   such   case,   if   he 
be    informed   as   to   the   source  from  which    the    money   with 
which      a      payment    may    have     been     made     was     derived, 
cannot     apply    it    otherwise,    even    with    the    consent   or    by 
the  direction  of  the  principal  debtor."     If  the  principal  makes 
an   application    of   the    payment   at    the   time    of    making  it, 
and  the  officer  receiving  it  did  not  know  where  the  money  came 
from,  such  application  will  stand,  even  though  the  money  col- 
lected by  one  set  of  sureties  is  thus  used  to  exonerate  another  set 
of  sureties.'     Where  a  collector  of  customs  was  appointed  and 
served  for  two  successive  terms,  and  gave  bond  for  each  term, 

Bank  of  Kingston,  16  New  York,  386.  of  payments  made  by  the  sheriff  in 

HoWing  that  the  sureties  on  a  sheriff 's  that  regard,  see  Moore  v.  Worsham, 

official  bond  must  themselves,  in  order  5  Ala.  645. 

.  to  be  discharged,  pay  the  amount  of  '  Per  Moncure,  J.,   in    Chapman  v. 

the  bond,  and  cannot  take  advantage  The  Commonwealth,  25  Gratt.  (Va.) 


TENDER   OF    AMOUNT   TO    CREDITOR.  397 

with  different  sets  of  sureties,  it  was  held  that  payments  into  the 
treasury  of  money  accruing  and  received  in  the  second  term, 
should  not  be  applied  to  the  extinguisliment  of  a  balance  appa- 
rently due  at  the  end  of  the  first  term;  and  such  money  cannot  be 
so  applied  by  the  treasury  officers,  and  thus  make  the  sureties  in 
the  second  bond  liable,  when,  in  fact,  there  has  been  no  defalca- 
tion during  the  term  for  whicli  they  are  liable.  The  liability  of 
the  sureties  in  the  two  bonds  is  just  as  distinct  as  if  two  different 
persons  had  filled  the  office  during  the  two  terms.'  By  statute, 
a  postmaster  was  to  render  his  account  every  three  months,  and 
it  was  further  enacted  that  if  default  should  be  made  by  the  post- 
master at  any  time,  and  the  postmaster  general  did  not  bring  suit 
within  two  years,  the  sureties  of  the  postmaster  should  be  dis- 
charged. Under  this  statute  it  was  held  that  where  a  postmaster 
in  a  quarterly  return  showed  a  balance  in  his  hands,  the  post- 
master general  might  apply  the  balance  reported  in  a  subsequent 
return,  to  the  previous  balance;  and  where,  in  an  account  cur- 
rent continued  for  years,  the  postmaster  general  thus  made  the 
application  of  balances  reported  by  a  postmaster,  any  deficiency 
on  final  settlement  due  from  the  postmaster  would  be  charge- 
able to  hia  last  quarterly  accounts;  and  unless  two  years  had 
elapsed  from  the  return  of  the  last  quarterly  account  to  the  time 
of  bringing  suit,  the  above  statute  would  not  bar  a  suit  against 
the  sureties.'' 

§  295.  If  principal  tender  amount  of  debt  to  creditor,  who 
refuses  to  receive  it,  surety  is  discharged. — If  the  principal,  after 
the  debt  is  due,  offers  to  pay  it,  and  tenders  the  amount  due  to  the 
creditor  and  the  creditor  refuses  to  receive  it,  the  surety  is  dis- 
charged. One  of  the  reasons  upon  which  this  rule  is  founded  is, 
that  the  transaction  amounts  to  a  payment  of  the  debt  and  a  new 
loan  to  the  principal.  Moreover,  the  contract  of  suret3^ship  im- 
ports entire  good  faith  and  confidence  between  the  parties  in  re- 
gard to  the  whole  transaction,  and  any  bad  faith  on  the  part  of  the 

721.     On  same  subject,  and  to    same  er'mg  v.  Day,  2  Delaware  Ch.  R.  333; 

general  effect,  see  Pickering  v.  Day,  State     v.  Sooy,    39    New    Jer.    Law 

3  Houston  (Del.)  474;  Myers  v.  United  (10  Vroom)  539. 

States,  1  McLain,  493;  Stone  v.  Sey-  '  United  States  v.  Eckford's  Exrs.  1 

mour,  15  Wend.  19;  United  States  v.  Howard  (U.  S.)  250. 

Linn,  2  McLean,  501.     To  a  contrary  *  United  States  v.  Kershner,  1  Bond, 

effect,  see  Readfleld  v.  Shaver,  50  Me.  432. 

36.    See,  also,  on  this  subject,  Pick- 


398  DISCHARGE   OF    SURETY   BY   PAYMENT. 

creditor  will  discharge  the  surety.  The  surety  cannot  compel  the 
creditor  to  receive  the  money,  but  his  refusal  to  do  so  is  a  fraud 
on  the  surety  which  exposes  him  to  greater  risk  and  operates  his 
discharge.  If  it  were  otherwise,  the  creditor  would  have  it  in  his 
power  to  keep  the  surety  under  the  cloud  of  the  debt  any  length 
of  time  he  might  see  proper.^  So,  also,  if  after  the  debt  is  due, 
the  surety  offers  to  pay  it  and  the  creditor  refuses  to  receive  pay- 
ment, the  surety  is  discharged.  In  holding  this,  the  court  said: 
"  If  it  is  the  legal  right  of  the  surety  to  pay  the  debt  and  at  once 
proceed  against  the  principal  debtor,  it  necessarily  follows  that  he 
is  entitled  to  have  the  money  accepted  by  the  creditor  in  order 
that  he  may  proceed.  It  is  the  duty  of  the  creditor  to  receive  it, 
and  a  gross  violation  of  duty  and  good  faith  on  his  part  to 
refuse,  thereby  interposing  an  insurmountable  obstacle  in  the 
way  of  the  pursuit  by  the  surety  of  his  most  2:)rompt  and 
efficient  remedy."  ^  An  offer  by  the  principal  to  pay  part 
of  the  debt,  and  a  refusal  by  the  creditor  to  receive  it? 
will  not  discharge  the  surety.^  Where  principal  and  surety 
signed  a  joint  and  several  promissory  note,  and  suit  was  brought 
thereon  against  the  principal,  and  pending  the  suit  the  surety 
tendered' the  amount  of  the  note  to  the  creditor,  it  was  held  he 
was  not  thereby  discharged  from  liability,  unless  he  also  offered 
to  indemnify  the  creditor  against  the  costs  of  the  action.*  In 
order  that  the  tender  of  payment  may  have  the  effect  of  discharg- 
ing the'  surety,  the  tender  must  be  made  in  money.  Thus,  A 
guarantied  B  against  loss  on  account  of  any  indorsements  which 
he  might  make  for  C  and  D.  Afterwards,  B  indorsed  for  C  and 
D,  who  failed,  and  offered  to  pay  or  secure  B,  by  transferring  to 
him  as  much  of  their  stock  in  trade  as  would  secure  him  the 
amount  for  which  he  was  liable,  which  offer  he  refused  to  accept. 

'Johnson  f.   Ivey,  4  Cold.  (Tenn.)  and  that  they  were  asked  to  take  anew 

608;     McQuesten    v.    Noyes,   6   New  step.     See,  also,  Liebbrandt  v.  Myron 

Hamp.    19;    Sears  v.  Van  Dusen,   25  Lodge,  61  111.  81,  where  it  was  held 

Mich.  351;  Joslyn  «;.  Eastman,  46  Vt.  that  the  surety  was   not  discharged 

258;  Musgrave  v.  Glasgow,  3  Ind.  31;  where  the  principal  verbally  offered  to 

Johnson  v.  Mills,  10  Gushing,  503;  Gu-  pay,  but  did  not  tender  the  money, 

riac  V.  Packard,  29  Gal.  194;  contra,  ''Hayes  v.  Josephi,  26  Gal.  535,  per 

Clark  V.   Sickler,  64  New  York,  231 ;  Sawyer,  J. 

where,  notwithstanding  the  foregoing  '  McCann  v.  Dennett,  13  New  Hamp. 

cases  all  previously  decided,  it  was  said  528. 

there  was  no  case  holding  the  surety  *  Manufacturers'  Bank  v.   Billings, 

discharged  under  such  circumstances,  17  Pick.  87. 


TENDER    OF    AMOUNT   TO    CEEDITOE.  399 

Held,  A  was  not  discharged  from  liis  guaranty  by  such  refusal  of 
B.^  A  sheriff  having  collected  money  belonging  to  a  party,  of- 
fered to  pay  it  to  him,  but  the  party  refused  to  received  it,  and 
the  sheriff  afterwards  absconded  without  paying  it.  Held,  the 
sureties  on  his  official  bond  remained  liable  for  the  money.  The 
court  said  that  an  official  bond  is  not  like  an  ordinary  obligation 
to  pay  a  debt,  for  it  guaranties  against  official  misconduct:  "  The 
fact  of  tender  and  refusal  does  not  convert  the  official  trust  into 
a  mere  private  liability  for  a  money  demand.  The  obligation  to 
pay  over  money  received  by  a  sheriff  in  his  official  capacity,  con- 
tinues an  official  duty  until  performed  by  payment  to  the  party 
entitled.  *  They  (the  sureties)  can  find  no  excuse  in  the  fact 
that  the  injured  individuals  have  not  been  cautious  to  fortify 
themselves  against  official  misconduct.  Their  undertaking  is 
that  there  shall  be  no  such  thing  as  official  misconduct."  * 

'Williams  v.  Reynolds,  11  La.  (Cur-  *  State  t>.   Alden,  12  Ohio,   59,  per 

ry)  230.    To  similar  effect,  Rhineland-      Read,  J. 
er  V.  Barrow,  17  Jolins.  538. 


CHAPTER  XIY. 


OF  THE  DISCHAKGE  OF  THE  SUEETY  OE  GUAEANTOE  BY  THE 
GIVING  OF  TIME. 


Section. 

Giving  time  to  the  principal  dis- 
charges the  surety.  General  rule  296 

Guarantor  discharged  by  time 
given  the  principal        .  .  297 

Surety  not  discharged  unless 
time  extended  for  a  definite 
period 298 

If  surety  consent  to  extension 
before  or  at  the  time  it  is  given, 
he  is  not  discharged  thereby     .  299 

When  surety  not  discharged  if  he 
promise  to  pay  the  debt  after 
time  is  given      ....  300 

Surety  discharged  by  valid  agree- 
ment to  give  time,  even  though 
remedy  of  creditor  not  suspend- 
ed thereby        ....  301 

Surety  who  is  fully  indemnified  is 
not  discharged  by  the  giving  of 
time 302 

How  liability  of  principal  affected 
by  time  given  a  surety,  and  of 
surety  by  time  given  another 
surety 303 

Agreement  to  give  time  need  not 
be  express  nor  proved  by  direct 
evidence.  Special  instances  of 
what  amounts  to  giving  time    .  304 

When  surety  discharged  by  pay-  . 
ment  of  interest  in  advance      .  305 

When  payment  of  part  of  debt 
sufficient  consideration  for  giv- 
ing of  time        ....  306 

Whether  agreement  to  pay  inter- 
est for  a  definite  time  is  suffi- 
cient consideration  for  extension 
for  that  period    ....  307 
Special  instances  of  sufficient  and 


Section, 
insufficient  consideration  for  ex- 
tending time      ....  308 

When  payment  of  usury  sufficient 
consideration  for  extension  of 
time.  Agreement  to  pay  usury 
not  sufficient     ....  300 

Cases  holding  payment  of  usury 
not  sufficient  consideration  for 
extension         .  .  .        .310 

How  far  surety  discharged  by 
time  given  by  one  of  several 
creditors.  Surety  who  becomes 
such  without  knowledge  of 
principal  discharged  by  giving 
of  time 311 

Surety  discharged  if  time  is  given 
after  debt  is  due.  Other  cases 
holding  surety  discharged  by 
extension  of  time      .        .        .  312 

Miscellaneous  cases  holding  sure- 
ty discharged  by  extension  of 
time        .  ....  313 

Suspending  fine  by  governor  of 
state  does  not  release  surety. 
Other  cases  holding  surety  not 
discharged  by  extension  of  time  314 

Miscellaneous  cases  holding  sure- 
ty not  discharged  by  extension 
of  time 315 

If  creditor  take  principal's  note 
for  extended  period  it  enlarges 
the  time  and  discharges  the 
surety 316 

Surety  on  bond  and  for  open  ac- 
count   discharged    by    creditor 
taking  principal's  note,  check  or 
trust  deed  for  extended  time     .  317 
When  surety  not  discharged    if 


(400) 


TIME   GIVEN   TEINCIPAL    DISCHAEGES    SUKETY. 


401 


Section. 
creditor  take    principal's    note 
for  extended  period  .  .  318 

Surety  not  discharged  by  creditor 
taking  collateral  security  for  ex- 
tended time     ....  319 

When  surety  not  discharged  if 
creditor  take  from  principal 
mortgage  for  extended  time  as 
collateral  security  for  the  debt  .  320 

When  surety  not  discharged  by 
extension  for  less  period  than 
that  in  which  judgment  could 
be  recovered.  Injunction  ob- 
tained by  principal  .  .  321 

If  creditor  continue  case  against 
principal,  surety  discharged. 
Other  cases  holding  surety  dis- 
charged by  extension  of  time     .  322 

Agreement  for  extension  must  be 
made  by  party  having  authority. 


Section. 
Conditional  agreement  for  ex- 
tension     .....  323 

How  surety  of  collector  of  taxes 
affected  by  extension  of  time. 
Other  cases        ....  324 

When  surety  discharged  by  ex- 
tension of  time  after  judgment  325 

Miscellaneous  cases  holding  sure- 
ty discharged  by  extension  of 
lime  after  judgment 

Whether  surety  on  specialty  dis- 
charged by  parol  agreement  for 
extension 

When  surety  discharged  by  ex- 
tension of  time  if  fact  of  surety- 
ship does  not  appear  from  the 
obligation 

Giving  time  to  principal  does  not 
discharge  surety  if  remedies 
against  surety  reserved 


326 


327 


328 


329 


§  296.  Giving  time  to  the  principal  discharges  the  surety — 
General  rule. — When  the  obligation  of  the  surety  is  for  the  debt 
of  the  princi]3al,  if  the  time  of  payment  is  without  the  consent 
of  the  surety,  by  a  binding  agreement  between  the  creditor  and 
principal,  extended  for  a  definite  time,  the  surety  is  discharged. 
The  reason  is,  that  the  surety  is  bound  only  by  the  terms  of  his 
written  contract,  and  if  those  are  varied  without  his  consent  it  is 
no  longer  his  contract,  and  he  is  not  bound  by  it.  It  therefore 
follows,  that  the  fact  that  the  principal  is  insolvent,  or  that  the 
extension  would  be  a  benefit  to  the  surety  if  he  remained  bound, 
makes  no  difference  in  the  rule.  Moreover,  the  surety  has  a 
right  when  the  debt  is  due,  according  to  the  original  contract,  to 
pay  it,  and  immediately  proceed  against  the  principal  for  indem- 
nity, and  he  is  deprived  of  this  right  by  such  an  extension  of  the 
time  of  payment.  As  to  this  ride  there  is  no  conflict  of  author- 
ity among  well  considered  cases.*     The  agreement  to  give  time  in 


'Ide  V.  Churchill,  14  Ohio  St.  372; 
J3ank  of  Albion  v.  Burns,  46  New 
York,  170;  Deal  v.  Cochran,  66  Nor. 
Car.  269;  Pipkin  v.  Bond,  5  Ired.  E. 
(Nor.  Car.)  91;  Haynes  v.  Covington, 
9  Smedes  &  Mar.  (Miss.)  470;  Wad- 
lington  V.   Gary,    7   Smedes   &   Mar. 

26 


(Miss.)  522;  Miller  v.  McCan,  7  Paige 
Ch.  R.  451;  Sailly  v.  Ehnore,  2  Paige 
Ch.  R.  497;  Huffman  v.  Hulbert,  13 
Wend.  375;  Haden  v.  Brown,  18  Ala. 
641;  King  V.  State  Bank,  9  Ark.  (4 
Eng.)  185;  Combe  v.  Woolf,  8  Bing. 
156;  Id.  1  Moore  &  Scott,  241;   Cald- 


I 


402 


DISCHARGE    OF    SUEETY    BY    GITIXG    OF   TIME. 


order  to  have  the  effect  of  discharging  the  surety  must  be  sup- 
ported bj  a  sufficient  consideration.  Otherwise  the  creditor  is 
not  bound  by  his  agreement,  and  may  at  any  time  enforce  the 
collection  of  the  debt,  and  the  surety  may  at  any  time  pay  the 
debt  and  proceed  against  the  principal.  And  the  rule  is  the  same 
if  the  creditor  actually  forbears  for  the  length  of  time  which  he 
has  agreed  without  consideration  to  forbear.'  It  is  also  well  set- 
tled, as  a  general  rule,  that  the  mere  passive  delay  of  the  creditor 
in  proceeding  against  the  principal,  however  long  continued  and 
however  injurious  it  may  be  to  the  surety,  will  not  discharge  the 
surety.  In  such  case  the  contract  is  not  changed,  and  the  surety 
may  at  any  time  pay  the  debt  and  proceed  against  the  principal.* 


well's  Exr.  v.  McVickar,  9  Ark.  (4 
Eng.)  418;  Heath  v.  Key,  1  Younge  & 
Jer.  434;  Ferg-uson  v.  State  Bank,  8 
Ark.  (3  Eng.)  416;  Branch  Bank  at 
Mobile  V.  James,  9  Ala.  949;  Thomas 
V.  Stetson,  59  Me.  229;  Calliham «. 
Tanner,  3  Robinson  (La.)  299;  Ed- 
wards V.  Coleman,  6  T.  B.  Mon.  (Ky.) 
567;  Fuller  v.  Milford,  2  AIcLean,  74; 
Apperson  v.  Cross,  5  Heisk.  (Tenn.) 
481;  Hill  V.  Bull,  1  Gilmer,  (Va.)  149; 
Hunter's  Admrs.  v.  Jett,  4  Rand  (Va.) 
104;  Kennebec  Bank  v.  Tuckerraan,  5 
Greenl.  (Me.)  130;  Thomas  v.  Dow,  33 
Me.  390;  Henderson's,  Admr.  v.  Ar- 
dery's  Admr.  £6  Pa.  St.  449;  Mc- 
Guire  v.  AVooldridge.  6  Robinson, 
(La.)  47;  Lewis  v.  Harbin,  5  B.  Mon. 
(Ky.)  564;  Sparks  v.  Hall,  4  J.  J. 
Marsh  (Ky.)  35;  Farmers'  &  Traders' 
Bank  v.  Lucas,  2-3  Ohio  St.  385;  Bas- 
Mn  V.  Godbe,  1  Utah,  28;  Reid  v. 
Watts,  4  J.  J.  Marsh.  (Ky.)  440; 
Roberts  v.  Richardson,  39  Iowa,  290; 
Dillon  V.  Russell,  5  Nebraska,  484; 
Crofts  V.  Johnson.  1  Marshall,  59; 
Isaac  V.  Daniel,  8  Adol.  &  Ell.  (N. 
S.)  500:  EUis  v.  Bibb,  2  Stew.  (Ala.) 
63;  Taylor  r.  Burgess,  5  Hurl.  &  Nor. 
1;  Allison  v.  Thomas,  29  La.  An.  732; 
Yeary  v.  Smith,  45  Texas,  56;  Thomp- 
son V.  Bowne,  39  New  Jer.  Law  (10 
Vroom.)  2.  But  see  David  v.  Malone, 
48  Ala.  428. 


1  Fair  v.  Pengelly,  34  Up.  Can.  Q.  B. 
R.  611;  Ford  v.  Beard,  31  Mo.  459; 
Tucker  v.  Laing,  2  Kay  &  Johns.  745; 
Brinagar's  Admr.  v.  Phillips,  1  B.  Mon. 
(Ky.)283;  Zane  v.  Kennedy,  73  Pa. 
St.  182;  Joslyn  v.  Smith,  13  Vt.  353: 
McLemore  v.  Powell,  12  Wheaton, 
554;  Sullivan  v.  Hugely,  48  Ga.  486; 
Goodwyn  v.  Hightower,  30  Ga.  249; 
De  Witt  V.  Bigelow,  11  Ala.  480; 
Montgomery  v.  Dillingham,  3  Smedes 
&  Mar.  (Miss.)  647;  Drapers.  Romeyn, 
18  Barb.  (N.  Y.)  166;  Roberts  v.  Stew- 
art, 31  Miss.  664;  McDowell  v.  Bank 
of  Wilmington  &  Brandywine,  2  Del. 
Ch.  R.  1 ;  M.  &  M.  Bank  WheeUng  t\ 
Evans,  9  West  Va.  373. 

-Fulton  V.  Matthews,  15  Johns.  433; 
Belfast  Banking  Co.  v.  Stanley,  Irish 
Rep.  1  Com.  Law,  693;  Warfield  r. 
Ludewig,  9  Robinson  (La.)  240;  Moore 
V.  Broussard,  20  Martin  (La.)  8  N.  S. 
277;  Force  v.  Craig,  2  Halstead  (N. 
J.)  272;  Jordan  v.  Trumbo,  6  Gill  & 
Johns.  (Md.)  103;  United  States  v. 
Simpson,  3  Pen.  &  Watts  (Pa.)  437; 
Buchanan  v.  Bordley,  4  Harr.  &  Mc- 
Hen.  (Md.)  41;  Cope  v.  Smith's  Exrs. 
8Serg.  &Rawle  (Pa.)  110;  Butler  r. 
Hamilton,  2  Desaussure  Eq.  (So.  Car.) 
226;  Johnson  v.  Searcy,  4  Yerg. 
(Tenn.)  182;  Crea*h's  Admr.  v.  Sims, 
5  How.  (U.  S.)  192;  Perfect  v.  Mus- 
grave,  6  Price,  111;  Strong  r.  Foster, 


TIME    GIVEN    PEINCIPAL   DISCHAEGES   GUARANTOK.  403 

Sacli  forbearance  by  the  creditor,  even  if  continued  until  the  debt 
is  barred  as  against  the  principal  by  the  statute  of  limitations,' 
or  if  continued  for  twenty-four  years,  does  not  discharge  the  surety/ 
§  297.  Guarantor  discharged  by  time  given  the  principal. — 
The  rule  with  reference  to  the  discharge  of  a  surety  by  the  giv- 
ing of  time,  is  equally  applicable  to  the  guarantor  of  a  debt  of 
another.'  "  That  a  guarantor  and  an  ordinary  surety  are  alike 
affected  by  such  extension  of  the  time  of  payment,  seems  to  bo 
required  by  sound  principles  of  law,  and  has  often  been  held."* 
Where  a  party  drew  an  order  on  a  merchant,  directing  him  to 
furnish  goods  out  of  his  store  to  a  third  person,  to  a  certain 
amount,  engaging  to  be  accountable  for  such  sum,  and  requesting 
the  amount  of  the  bill  to  be  sent  to  him,  and  the  merchant  fur- 
nished goods  to  such  third  person  to  a  greater  amount,  and  took  his 
note  at  thirty  days  for  the  debt,  it  was  held  that  no  action  accrued 
under  the  guaranty.  The  guarant}''  was  an  undertaking  to  pay 
for  the  goods  as  soon  as  they  were  sold,  and  the  giving  of  time 
prevented  a  liability  from  attaching  thereunder.*  A  wrote  to  B 
a  guaranty  for  goods  to  be  purchased  by  C,  as  follows:  "We 
engage  to  guaranty  to  you  the  payment  of  any  goods  you  may 
supply  *  (C)  between  2d  of  April,  1814,  and  the  2d  of  April, 
1815."  B  supplied  C  goods  on  the  usual  credit,  and  took  com- 
mercial paper  for  them,  and  when  the  paper  became  due  took  for 
it  new  paper  of  C  for  extended  periods.  Held,  the  guaranty  was 
only  intended  to  cover  goods  sold  on  the  usual  time,  and  that 
extending  the  time  discharged  A,  even  if  it  was  to  his  benefit. 
The  Court  said:  "It  cannot  be  supposed  that  the  plaintiff  (A) 
meant  he  was  to  continue  liable  after  the  2d  of  April,  1815,  so  long 
as  the  defendant  (B)  might  choose  to  renew  the  bills  of  the  principal 
debtor.  ^  The  creditor  has  no  right — it  is  against  the  faith  of  his 
contract — to  give  time  to  the  principal,  even  though  manifestly  for 
the  benefit  of  the  surety,  without  the  consent  of  the  surety."  " 

17  Com.  Bench  (8  J.  Scott)  201;  King  Holding  that  a  gnarantor  is  not  dis- 

V.  State  Bank,  9  Ark.  (4  Eng.)  185;  charged  by  time  given,  unless  injured, 

Humphreys  v.  Crane,  5  Cal.  173.  see  Follmer  v.  Dale,  9  Pa.  St.  83. 

'  Reid  V.  Flippen,  47  Ga.  273;  Whit-  *Per  Dewey,  J.  in  Chace  v.  Brooks, 

ing  V.  Clark,  17  Cal.  407.  5  Cush.  43. 

^Roberts  v.   Colvin,  3  Gratt.  (Va.)  ^Hunt  v.  Smith,  17  Wend.  179. 

358;  Hunt  v.  Bridgham,  2  Pick.  581.  «  Samuell  v.   Howarth,  3  Merivale, 

3  Campbell  v.  Baker,  46  Pa.  St.  243;  272,  per  Ld.  Eldon. 
Fithian  v.    Corwin,    17   Ohio  St.  118. 


404:  DISCHARGE    Or   SURETY    BY   GIVING   OF   TIME. 

§  298.  Surety  not  discharged  unless  time  extended  for  a 
definite  period. — In  order  that  an  agreement  between  the  creditor 
and  principal,  extending  the  time  of  payment  shall  have  the  effect 
of  discharging  the  surety  or  guarantor,  the  extentiou  must  be  for 
a  definite  time.  It  makes  no  difference  for  how  short  a  period 
the  time  is  extended,  but  that  period  must  be  fixed,  otherwise  the 
hands  of  the  creditor  are  not  tied,  and  he  may  proceed  at  any 
time.^  Thus,  the  surety  is  not  discharged  by  an  agreement  by  the 
creditor  to  wait  "  awhile  longer."  How  long  is  awhile  longer  ? 
"  It  may  be  a  moment,  an  hour,  a  day,  or  a  year.  Who  can  de- 
termine it,  and  on  wdiat  evidence  can  it  be  determined.  *  If 
such  a  contract  were  valid  in  other  respects,  it  must  be  void,  be- 
cause no  man  can  tell  from  the  proof  what  it  is,  and  it  cannot 
therefore  be  enforced.'"*  So,  an  agreement  "to  give  time  for 
payment  beyond  the  day  of  maturity  of  the  notes,"  does  not  dis- 
charge the  surety.  "  Such  a  stipulation  is  void  for  uncertainty; 
it  amounts  to  nothing  more  than  a  general  promise  of  indulgence, 
and  can  tie  up  the  hands  of  no  one."  ^  But  where  the  holder  of 
a  bill  after  its  maturity  agreed  with  the  maker  to  wait  till  the 
drawer  could  be  heard  from,  it  was  held  that  the  time  of  indulg- 
ence was  sufficiently  definite  to  discharge  the  indorser.*  It  has 
been  held  that  an  agreement  to  extend  the  time  of  payment  "  to 
the  Summer  "  of  a  given  year,  means  until  the  first  day  of  June 
of  that  year,  and  "  until  the  Fall,"  means  until  the  first  day  of 
September,  and  is  sufficiently  certain  to  discharge  a  surety.*  But 
it  has  also  been  held,  that  an  agreement  to  extend  the  time  of 
payment  till  "some  time  in  the  Summer"  is  not  sufficiently 
definite.®  Under  certain  circumstances  a  guarantor  will  be  dis- 
charged by  time  given,  though  no  term  of  credit  is  stipulated  in 
the  guaranty.     Thus,  the  defendant  guarantied  the  payment  for 

'Freeland  r.    Compton,   30    Miss.  effect,  see  Cox  «.  Mobile  &  Girard  R.  R. 

424;  Menifee  v.   Clark,  35  Ind.  304;  Co.  37  Ala.  320. 

Board  of  Police  of  Clark  Co.  v.  Co\'ing-  ^  Jenkins  v.  Clarkson,  7  Ohio  72,  per 

ton,  26  Miss.  470;  Gardner  r.  Watson,  Wood,  J. 

13  111.     847;  Thornton  ?;.  Dabney,  23  ^Vard  v.  Wick   Bros.  17  Ohio   St. 

Miss.    .559;    Alcock  v.  Hill,   4  Leigh  159,  per  Scott,  J. 

(Va.)    622;     McGee    v.     Metcalf,    12  *  Rupert  r.  Grant,  6  Sm^des  &  Mar. 

Smedes  &  Mar.  (Miss.)  535;  Hayes  v.  (Miss.)  433.     Overruling  another  point 

Wells,  34  Md.   512;  Parnell  v.  Price,  decided  in  this  case,    see  Roberts  v. 

3    Richardson    Law    (So.   Car.)   121;  Stewart,  31  Miss.  664. 

Woolfolk  V.  Plant,  46  Ga.  422;  Buck-  =  Abel  v.  Alexander,  45  Ind.  523. 

len  r.  Huff,  53  Ind.  474.   To  a  contrary  « Miller  v.  Stem,  2  Pa.  St.  286. 


CONSENT    OF    STJEETY    TO    EXTENSION.  405 

porter  to  be  delivered  by  tlie  plaintiff  to  J,  but  the  guaranty  con- 
tained no  stipulation  as  to  tlie  credit  to  be  given.  The  plaintiff's 
custom  was  to  give  six  months'  credit,  and  then,  sometimes,  to 
take  a  bill  at  two  months.  The  plaintiff  sold  the  porter  and 
waited  nine  months,  and  then  took  a  bill  at  two  months  for  the 
price,  thus  giving  eleven  months  credit.  Held,  the  guarantor 
was  discharged.  The  court  said:  "In  the  present  case,  though 
no  specific  time  of  payment  is- fixed  by  the  guaranty,  yet  it  must 
be  implied  that  the  guaranty  was  given  on  the  supposition  that 
the  debtor  would  not  have  more  than  the  usual  credit."  ^ 

§  209.  If  surety  consent  to  extension  before  or  at  the  time  it 
is  given,  he  is  not  discharged  thereby. — The  surety,  who  at  the 
time  of  or  before  an  extension  is  granted  to  the  principal,  con- 
sents to  the  same,  is  not  discharged  thereby.^  The  fact  that  a 
surety  has  consented  to  one  extension  will  not  authorize  any  other 
extension.  He  has  a  right  to  stand  upon  the  terms  of  his  con- 
tract as  altered  by  his  consent,  and  any  other  extension  will  dis- 
charge him  the  same  as  if  he  had  never  consented  to  any.^  But 
where  a  surety  in  a  replevin  bond  wrote  to  the  plaintiff,  giving 
his  consent  to  a  stay  of  execution  till  April  1st  following,  and 
longer  if  the  principal  asked  it,  and  the  principal  continued  from 
time  to  time  to  ask  and  receive  indulgence  from  April  1st,  1860, 
to  May,  1864,  when  execution  was  issued,  which  was  enjoined  by 
the  surety,  it  was  held  that  the  letter  of  the  surety  authorized  the 
extensions,  and  the  surety  was  not  discharged.*  If  the  surety 
knows  of  the  extension  at  the  time  it  is  given,  it  is  not  necessary 
that  he  should  object  thereto  in  order  to  entitle  him  to  his  dis- 
charge.^ And  even  if  he  signs  the  agreement  for  extension  as  a 
witness,  that  fact  will  not  prevent  his  discharge  by  such  exten- 
sion.® The  court  said  that  if  his  intention  had  been  to  consent  to 
the  extension,,  he  would  have  signed  it  as  a  maker,  and  not  as  wit- 

1  Per  Tinclal,   C.   J.,    in    Combe  v.  Brown,   12  New  Hamp.    320;  Gray's 

Woclf,  8  Bing.  156;    Id.   1  Moore  &  Exrs.  v.  Brown,  22  Ala.  262. 

Scott,  241.  ^  Furber  17.  Bassett,  2  Duvall  (Ky.) 

2 Treat  v.  Smith,  54  Me.  112;  Wolf  433. 

1?.  Finks,  1  Pa.  St.  435;  Hunter's  Admr.  ^  Stewart    r.   Parker,   55  Ga.  656; 

V.  Jett,  4  Rand.  (Va.)  104;  Wrig-ht  v.  Exrs.   of  Riggins   v.   Brown,   12  Ga. 

Storrs,  6  Bosw.  (N.  Y.)  600;  Baldwin  271. 

V.  Western  Reserve  Bank,  5  Ohio,  273.  ^  Edwards  v.  Coleman,  6  T.  B.  Mon. 

3  Lime  Rock  Bank  v.  Mallett,  34  Me.  (Ky.)  567,  per  Bibb,  C. 
547;     Merrimack    County    Bank    v. 


406  DISCnAKGE    OF   SUIJETY    BY    GIVING   OF   TIME. 

ness.  The  fact  tliat  he  signed  as  a  witness  went  to  show  that  it  was 
thought  he  was  a  disinterested  party.  If  he  is  bound  at  all,  his 
"  concurrence  must  bind  him  bj  the  terms  of  the  new  (contract). 
It  is  not  enough  to  bind  him  that  he  is  informed,  and  is  passive; 
he  is  not  required  to  object  or  protest;  he  must  actively  concur 
and  consent  to  be  bound  by  the  terms  of  the  new  agreement." 
The  assent  of  a  surety  to  an  extension  of  time  may  be  proved 
like  other  facts,  by  circumstantial  evidence,  and  it  has  been  held 
that  a  "regular  usage  of  a  bank  to  receive  payment  by  instal- 
ments, or  checks  at  sixty  or  ninety  days,  or  whatever  length 
of  time  such  regular  rule  prescribes,  with  interest  on  the  balance 
in  advance,  furnishes  presumptive  evidence  of  assent  of  those  who 
become  parties  to  notes  payable  to  the  bank,  that  the  payment 
may  be  delayed  and  received  in  instalments  according  to  such 
usage,  until  the  contrary  is  shown."  But  the  usage  must  be  so 
general  and  uniform,  as  to  be  presumptively  known  to  those  who 
cieal  with  the  bank.^  Where  from  tlie  circumstances  of  the  case 
there  was  no  probability  that  the  surety  knew  of  the  usage,  the 
court  held  that  he  was  not  bound  by  it,  and  was  discharged  by 
time  given  the  principal.^  If  one  of  two  sureties  consent  to  the 
giving  of  time,  and  the  other  does  not,  the  latter  is  discharged, 
and  the  former  cannot  recover  contribution  from  him.^  Where 
the  indorser  of  a  note  due  April  2d  had  been  duly  notified  of  the 
default  of  the  principal,  and  afterwards  agreed  in  writing  on  the 
back  of  the  note  to  be  holden  as  indorser  until  April  5th,  it  was 
held  that  the  second  indorsement  did  not  discharge  the  liability 
\mder  the  first,  and  that  the  indorser  was  liable  on  both  indorse- 
ments.^ If  the  principal  obtains  from  the  creditor  an  extension  of 
time  upon  the  false  representation  that  the  surety  lias  authorized 
him  to  do  so,  and  the  surety  afterwards  refuses  to  consent  to 
such  extension,  it  has  been  held  that  the  creditor  may  repudiate 
the  agreement,  in  which  case  the  surety  will  not  be  discharged 
unless  the  creditor  proceeds  to  act  under  the  agreement  after 
notice  that  the  surety  had  not  assented  thereto.* 

^  Per  Parker,  C.  J.  in  Crosby  w.Wy-  -  New  Hampshire   Savings  Bank  v. 

att,  10  New  Hamp.  318.    To  the  same  Ela,  11  New  Hamp.  335. 

effect,  where  the  surety  had  been  a  cli-  ^Crosby  v.  Wyatt,    10  New  Hamp. 

rector,  and  known  the   usage  of  the  318. 

bank,  see  Stafford  Bank  v.  Crosby,  8  *  Smith  v.  Hawkins,  6  Ct.  444. 

Greenl.  (Me.)  191.  s  Bangs  v.  Strong,  10  Paige  Ch.  R. 

11. 


TROMISE    TO    PAY    AFTER   TIME    GIVEN.  407 

§  300.  "When  surety  not  discharged  if  he  promise  to  pay  the 
debt  after  time  is  given. — If  after  time  lias  been  given  tlie  prin- 
cipal, such  as  would  entitle  the  surety  to  his  discharge,  the  surety, 
with  a  full  knowledge  of  the  facts,  but  without  any  new  consid- 
eration, promise  to  pay  the  debt,  he  will  remain  liable  therefor. 
The  action  in  such  case  is  upon  the  original  obligation,  and  not 
upon  the  new  promise.  "  The  promise  is  valid,  not  as  the  con- 
stitution of  a  new,  but  the  revival  of  an  old  debt."  '  It  has  been 
said  that  "  The  rij^ht  of  discharge  in  such  case  from  the  mere 
fact  of  the  extension  of  time,  is  a  personal  privilege  of  the  surety, 
which  he  may  waive,  and  he  does  so  emphatically,  if,  with  knowl- 
edge of  the  fact,  he  notwithstanding  renews  his  promise.'"^  If 
the  surety  does  not  know  that  time  has  been  given,  and  makes  a 
new  promise  without  consideration  to  pay  the  debt,  he  is  not 
bound  thereby,  and  he  will  be  discharged,  notwithstanding  such 
promise.^  But  if  a  surety  has  been  discliarged  b}'  the  giving  of 
time,  and  afterwards,  without  a  knowledge  of  the  facts,  but  on  a 
new  and  independent  consideration  agrees  to  remain  bound,  he 
will  be  held.  "  It  is  not  like  a  case  of  a  new  promise  or  acknowl- 
edgment of  liability,  without  any  consideration.  *  Before  he 
enters  into  a  new  agreement  upon  a  new  consideration,  he  should 
inquire,  at  the  peril  of  being  held  thereby  to  have  waived  his 
right,  to  insist  upon  the  discharge  if  he  neglects  the  inquiry."  * 
Where  a  surety  on  a  bond  gave  a  creditor  an  agreement  "  to  take 
no  advantage  of  any  indulgence  which  *  (the  creditor)  may 
liave  given  heretofore,  or  may  hereafter  give  to  *  (the  prin- 
cipal) on  said  bond,"  it  was  held  that  such  agreement  was  a 
waiver  of  a  defense  on  account  of  time  given  on  a  valuable  con- 
sideration, as  well  as  on  account  of  time  given  without  consider- 
ation.' It  has  been  held  that  the  consent  of  a  surety  to  a  pro- 
longation of  time  given  to  the  principal  will  not  be  inferred, 
from  the  fact  that  the  surety  told  the  creditor  when  called  upon 

'  Smitli  V.  Winter,  4  Mees.  &  Wels.  ^  ]yjg^.j^.i„-jack  County  Bank  v.  Brown, 
454;  Porter  v.  Hodenpuyl,  9  Mich.  11;  12  New  Hamp.  320;  Montgomery  v. 
Ellis  V.  Bibb,  2  Stew.  (Ala.)  63;  First  Hamilton,  43  Ind.  451;  Kerr  t;.  Cam- 
National  Bank,  Monmouth  v.  Whit-  eron,  19  Up.  Can.  Q.  B.  R.  366. 
man,  66  111.331;  contra,  Walters  v.  *New  Hampshire  Savings  Bank  v. 
Swallow,  6  Wharton  (Pa.)  446.  Colcord,  15  New  Hamp.  119. 

2  Per    Parker,    C.    J.   in   Fowler  t).  *  Crutcher  v.  Trabue,  5  Dana(Ky.) 

Brooks,  13  New   Hamp.  240;  Rinds-  80. 
kopf  V.  Doman,  28  Ohio  St.  516. 


I 


408  DISCHAEGE   OF    SURETY    BY    GIVING    OF   TIME. 

for  payment,  tliat  she  could  not  pay  it  then,  but  that  she  would 
agree  to  any  arrangement  for  her  made  by  the  principal,  unless 
it  be  proved  that  the  principal  in  making  the  agreement  for  ex- 
tension, acted  as  the  agent  of  the  surety.''  It  has  been  said  that, 
•'  The  fact  that  the  surety  takes  security  from  the  principal  to  in- 
demnify him  against  his  liabilitj',  *  (for  the  debt)  without 
any  communication  with  the  creditor,  is  not  a  renewal  of  his 
promise.  It  is  perfectly  consistent  with  a  determination  to  avail 
himself  of  his  right  to  a  discharge.  It  may  well  be  but  a  wise 
precaution  against  the  contingency,  that  he  may  not  be  able  to 
substantiate  his  claim  to  be  exonerated  from  the  payment  of  the 
debt."=' 

§  301.  Surety  discharged  by  valid  agreement  to  give  time,  even 
though  remedy  of  creditor  not  suspended  thereby. — An  agree- 
ment upon  valid  consideration  by  a  creditor  not  to  sue  the  prin- 
cipal for  a  stated  time,  discharges  the  surety,  even  though'  such 
agreement  cannot  be  specifically  enforced.  With  reference  to 
this  it  has  been  said:  "  It  must  be  admitted  that  a  valid  agree- 
ment not  to  sue  for  a  debt  for  a  limited  time  cannot  be  pleaded  in 
bar  of  an  action  brought  for  the  debt  within  the  time,  *  But 
still  the  law  is  well  settled  that  such  an  agreement  by  a  creditor 
with  his  principal  debtor  discharges  the  surety.  It  is  said  that 
such  agreement  ties  up  the  hands  of  the  creditor,  because,  if  he 
breaks  it,  he  may  be  sued  for  damages."'  It  has  also  been  said 
that:  "It  is  sufficient  if  the  contract  between  the  creditor  and 
the  principal  for  the  extension  of  time  be  such  as  to  give  the 
principal  a  legal  remedy  upon  it.  The  doctrine,  which  is  derived 
from  chancery,  is  founded  on  the  obligation  which  the  contract 
for  delay  imposes  upon  the  conscience  of  the  creditor  to  perform 
it."  *  If  the  holder  of  a  note  payable  on  demand  makes  a  valid 
agreement  with  the  principal  to  receive  payments  by  yearly  in- 
stalments, he  thereby  discharges  the  surety.  In  such  a  case  it 
was  argued  that  the  note  might  be  sued,  notwithstanding  the 
agreement,  and  the  only  remedy  of  the  principal  would  be  a  suit 
for  damao-es  for  the  breach  of  the  ao-reement.  But  the  court  said: 
"  That  argument  ought  not  to  prevail,  for  it  would  be  founded 

'  Deuil  V.  Martel,  10  La.  An.  643.  Greely  v.   Dow,   2  Met.  (Mass.)  176; 

°  Per    Parker,    C.   J.    in  Fowler  v.  Dickerson  v.  Commissioners  of  Ripley 

Brooks,  13  New  Hamp.  240.  Co.  6  Ind.  128. 

^  Per  Blackford,  J.  in  Harberfc  v  Du-  *  Per  Hall,  J.  in  Austin  v.  Dorwin, 

xnont,  3  Ind.  346.    To  same  effect,  see  21  Vt.  88. 


INDEMNIFIED    SUKETY    NOT    DISCIIAEGED    BY   EXTENSION.       409 

upon  a  presumption  of  the  creditors'  own  wrong.  It  is  not  to  be 
presumed  that  the  agreement  will  be  violated  on  the  part  of  the 
creditors."  ^ 

§  302.  Surety  who  is  fully  indemnified  is  not  discharged  by 
the  giving  of  time. — -If  the  surety  is  fully  indemnified  by  prop- 
erty of  the  principal  placed  in  his  hands,  or  mortgaged  to  him  for 
that  purpose,  he  is  not  discharged  from  liability  by  an  extension 
afterwards  granted  to  the  principal.^  In  one  case  this  was  put 
upon  the  ground  that  the  surety,  under  such  circumstances,  be- 
came the  principal  when  he  received  the  indemnity.^  In  another 
case  it  was  said  that:  "  The  taking  by  the  sureties  of  a  deed  of  trust 
or  mortgage  from  the  principal  debtor,  to  secure  them  against  lia- 
bility, and  ample  for  that  purpose,  is  in  effect  an  appropriation  by 
them  of  that  portion  of  the  effects  of  the  principal  to  the  payment 
of  this  debt.*  But  where  a  surety,  after  his  release,  by  an  extension 
of  time  given  the  principal,  received  from  the  principal  an  indem- 
nity against  liability,  without  the  knowledge  of  the  creditor,  and 
subsequently  surrendered  the  same  to  the  principal,  it  was  held 
that  he  might  still  avail  himself  of  his  release  by  the  time  o-iven. 
The  court  said  that  taking  the  indemnity  did  not  amount  to  a  new 
j)romise,  but  was  a  precaution  against  the  contingency  that  he 
mi«:ht  not  be  able  to  substantiate  his  defense.'  W  si«;aed  a  note 
with,  and  as  surety  for,  two  others,  and  received  from  the  payee 
the  money  for  which  the  note  was  given,  and  retained  it  until  one 
of  the  principals  gave  him  a  note  against  a  third  person  for  his 
indemnity,  and  he  then  paid  the  money  over  to  the  principals. 
Afterwards  the  time  of  payment  of  the  note  signed  by  W,  as 
surety,  was  extended.  Held,  that  neither  the  circumstance  of 
his  receiving  the  money,  nor  his  holding  the  indemnifying  note, 
precluded  him  from  availing  himself  of  the  extension  of  time  as 
a  discharge.  The  court  said  that  while  he  held  the  money  he 
could  not  claim  the  privileges  of  a  surety,  but  when  he  paid  it 
over,  it  was  the  same  as  if  he  had  never  held  it.* 

§  303.      How    liability  of   principal  affected    by  time   given  a 
surety,  and  of  surety  by  time  given  another  surety. — An  agreement 

'  Gifford  V.  Allen,  3  Met.  (Mass.l  255,  ^  Per  Ortnond,  J.  in  Chilton  v.  Rob- 

per  Putnam,  J.  bins,  4  Ala.  223. 

^  Kleinhaus  v.  Generous,  25  Ohio  St.  ^  Rittenhouse  v.  Kemp,  37  Ind.  258, 

667.  « Wilson  v.  Wheeler,  29  Vt.  484. 

3 Smiths.  Steele,  25Vt.  427. 


410  DISCHAKGE    OF    STJKETY   BY   GIVING    OF   TIME. 

between  tlie  creditor  and  principal  that  tlie  surety  slia,ll  not  be  sued 
before  a  certain  time  after  the  debt  becomes  due,  does  not  entitle 
the  surety  to  his  discharge.  It  does  not  prevent  the  creditor 
from  suing  the  principal,  nor  the  surety  from  paying  the  debt 
and  proceeding  against  the  principal.'  Where  a  surety  gave 
the  creditor  his  individual  notes,  under  an  agreement  between 
them  which  was  known  to  the  principal,  that  those  notes,  when 
paid,  should  be  in  full  satisfaction  of  the  original  contract,  and 
part  only  of  the  notes  were  paid,  it  was  held  that  this  did  not 
discharge  the  principal,  who  might  be  sued  on  the  origiual  con- 
tract, and  held  for  so  much  as  the  surety  had  not  paid.  The 
court  said  that  giving  time  to  surety,  or  making  a  new  contract 
with  him,  did  not  discharge  the  principal.^  "Where  the  creditor 
gave  time  to  one  of  two  solidary  co-sureties,  it  was  held  that  the 
surety  to  whom  time  had  not  been  given  was  discharged  from  one- 
half  the  debt.  The  court  said  that  the  surety  to  whom  time  had 
not  been  given,  would,  upon  paying  the  debt,  have  been  entitled 
to  subrogation  to  the  creditor's  right  of  action  against  the  surety 
to  whom  time  had  been  given;  and  as  he  was  deprived  of  this 
right  by  the  giving  of  time,  he  was  discharged  to  the  extent  of 
one-half  the  debt.^  A,  B  and  C  were  the  makers  of  a  note  which 
A  assumed  to  pay,  and  D  became  responsible  to  B  and  C  that  A 
would  do  so.  E  guarantied  that  D  would  perform  his  contract. 
The  holder  of  the  note  granted  D  an  extension  for  one  year: 
Held,  E  was  not  discharged.  The  court  said  the  giving  of  time 
did  not  release  B  and  C,  and  D  was  bound  to  indemnify  them, 
and  had  not  done  so,  and  therefore  E  was  liable  for  this  default 
of  D.^  In  another  case.  A,  at  the  request  of  B,  and  on  his  prom- 
ise that  he  would  share  any  loss  or  liability  he  might  thereby 
incur,  accepted  a  bill  at  three  months  for  the  accommodation  of 
C.  At  the  maturity  of  the  bill,  C  being  unable  to  meet  it,  it  was 
agreed  between  the  holders  and  A  and  C,  but  without  the  knowl- 
edge of  B,  that  another  bill  should  be  drawn  for  the  amount,  as  a 
substitute  for  the  former  acceptance,  and  this  was  done.  A 
having  been  obliged  to  pay  the  second  bill,  sued  B  for  indem- 

'  Armstead  v.  Tliomas,  9  Ala.  586;  ^Gosserand  v.  Lacour,  8  La.  An.  75. 

Wilson  V.   Bank  of  Orleans,   9  Ala.  To  contrary  effect,  see  Draper  v.  Weld, 

847.  13  Gray,  580. 

2  Emery  v.  Ricliardson,  61   Me.  99.  ♦  Kennedy  v.   Goss,  38  New  York, 

To  similar  effect,  see  Whiting  v.  West-  330. 
em  Stage  Co.  20  Iowa,  554. 


I 


AGREEMENT    TO    GIVE    TIME    NEED    NOT    BE    EXrEESS.  411 

nity,  and  it  was  held  that  his  liability  on  his  undertaking  to 
indemnify  A  was  not  discharged  by  the  renewal  of  the  bill.' 

§  304.  Agreement  to  give  time  need  not  be  express,  nor 
proved  by  direct  evidence — Special  instances  of  vrhat  amounts 
to  giving  time. — The  agreement  by  a  creditor  to  give  time  to  the 
principal,  need  not  be  in  exj)ress  words,  in  order  to  discharge  the 
surety.  It  is  sufficient,  in  that  regard,  if  a  mutual  understand- 
ing and  intention  to  that  effect  are  proved.'"^  If  the  parties  act 
upon  the  terms  of  an  implied  agreement  to  that  effect,  it  will  be 
sufficient.^  The  holder  of  a  note  made  upon  it  several  successive 
indorsements  of  the  words  "  Received,  Renewed."  To  each  of 
these  indorsements  a  date,  subsequent  to  the  maturity  of  the  note, 
was  affixed.  Held,  that  each  of  the  indorsements  was  equivalent 
to  the  words  "  received  the  interest  for  a  renewal,"  and  tliat  the 
word  "I'enewed"  might  be  properly  regarded  as  an  agreement  to 
consider  the  note  to  be  the  same  as  if  made  in  the  same  terms 
anew  from  that  date."  The  following  indorsement,  made  by  the 
holder  of  a  note,  due  July  5th,  1852,  viz.:  "Six  months  further 
time  is  given  on  the  within  note,  and  interest  paid  to  January, 
3d,  1853,"  is  sufficient  evidence  of  a  contract  between  the  holder 
and  the  principal  for  a  delay  in  the  payment  of  the  note,  and  that 
a  prepayment  of  interest  was  the  consideration  therefor.^  Where 
the  principal  in  a  note  requests  an  extension  of  time  by  a  letter, 
accompanied  by  an  inclosure  of  a  sum  of  money  as  a  considera- 
tion for  the  extension,  which  extension  is  not  agreed  to  by  the 
creditor,  though  he  keeps  the  money  and  applies  it  on  the  debt, 
without  notifying  the  principal  that  he  will  not  give  the  time, 
these  facts  do  not  alone  establish  a  giving  of  time,  and  release  the 
surety,  where  there  are  other  facts  which  show  that  time  was  not 
given."  The  principal  in  a  note,  before  its  maturity,  sent  the 
holder  a  letter  containing  a  draft,  and  stating  that  he  hoped  to  be 
able  to  pay  the  note  soon,  in  which  case  the  amount  of  the 
draft  was  to  be  applied  in  part  payment,  but  that  if  he  could  not 

1  Way  V.  Hearn,  11  J.  Scott  (N.  S.)  "  Lime  Rock  Bank  v.  Mallet^  34  Me. 
774;  Wayv.  Hearn,  IB  J.  Scott,  (N.  547;  Lime  Rock  Bank  t?.  Mallett,  42  Me. 
S.)  292.                                                        349. 

2  Brooks  i\  Wright,  13  Allen,  72.  ^  Dubuisson  v.  Folkes,  30  Miss.  432. 
*  Union  Bank  V.  McClung,  9  Humph.  ^Garton  v.  Union  City    Bank,   34 

(Tenn.)  98.     Also,  as  to  what  amounts      Mich.  279. 
to  a  giving  of  time,  see  Ducker  v.  Rapp, 
67  New  York,  464. 


412  DISCHARGE    OF    SURETY    BY    GIVING    OF    TIME. 

do  SO,  the  holder  shoidd  take  that  sum  as  interest  in  advance  for 
three  months  after  the  maturity  of  the  note..  The  holder  made 
no  reply  to  this  letter,  hut  procured  the  draft  to  be  cashed,  and 
lield  the  proceeds  without  making  any  application  thereof  upon 
tlie  note  till  the  expiration  of  three  months  after  the  matur- 
ity of  tlie  note,  \vhen  he  indorsed  it  as  three  months'  interest  there- 
on. Held,  these  facts  did  not  import  a  binding  contract  for  ex- 
tension of  the  time  of  payment  of  the  note,  and  the  surety  was 
not  discharged.* 

§  305.  "When  surety  disctiarged  by  payment  of  interest  in 
advance. — The  payment  of  legal  interest  on  a  debt  in  advance,  is 
a  sufficient  consideration  to  support  an  agreement  for  an  exten- 
sion of  the  time  of  payment  thereof.^  The  decided  weight  of 
authority,  and  it  seems  the  better  reason,  is  that  the  payment  in 
advance  of  interest  on  the  debt  by  the  principal  to  the  creditor  is 
of  itself  without  more  sufficient  prima  facie  evidence  of  an 
agreement  to  extend  the  time  of  payment  for  the  period  for 
which  the  interest  is  paid,  and  works  the  discharge  of  the  surety.^ 
"With  reference  to  this  matter  it  has  been  said  that  "  the  very  idea 
of  payment  of  interest  in  advance  presupposes  that  dela}^  of  the 
payment  of  the  principal  is  to  be  given  for  that  time.  The  pay- 
ment of  the  interest  is  the  consideration  for  an  agreement  implied 
from  the  transaction  itself,  if  not  distinctly  expressed,  to  give 
time  on  the  principal.  The  general  rule  is  that  the  reception  of 
interest    in    advance   upon    a    note  is   prima  facie    evidence 

'    '  Bank  of  Middlebury  v.   Bingham,  43  Ind.  163;  Union  Bank  v.  McClung, 

33  Vt.  621.  9  Humph.  (Tenn.)  98;  "Wakefield Bank 

2RosetJ.  Williams,   5   Kansas,  483;  v.  Truesdell,  55  Barb.    (N.  Y.)  602; 

Christner  v.  Brown,  16  Iowa,  130;  Peo-  contra,  see  Freeman's  Bankr.  Rollins, 

pie's  Bank  v.   Pearsons,    BOVt.  711;  13    Me.    202,    overruling     Kennebec 

Warner  u.  Campbell,  26  111.  282;  Lime  Bank  v.  Tuckerman,  5  Greenl.  (Me.) 

Rock  Bank  v.  Mallett.  34  Me.  547;  130;    Mariner's    Bank   v.  Abbott,  28 

Flynn  v.  Mudd,  27  111.  323;  Dubuisson  Me.  280;  Hosea  v.    Rowley,  57    Mo. 

V.    Folkes,  30   Miss.   432;  Wright  r.  357;    Coster  v.  Mesner,  58  Mo.  549; 

Bartlett,  43  New  Hamp.  548.  Agricultural  Bank  v.  Bishop,  6  Gray, 

MVoodburn  v.  Carter,  50  Ind.  376;  317;  Oxford  Bank  v.  Lewis,  8  Pick. 

Preston  r.  Henning,  6  Bush  (Ky.)  556;  458;     Blackstone    Bank    r.    Hill,    10 

Warner  v.  Campbell,  26  lU.  282;  Peo-  Pick.  129;  WiUiams  v.  Smith,  48  Me. 

pies'   Bank  v.  Pearsons,   30Vt.  711;  135;  Crosby  r.  Wyatt,  23  Me.   156. 

Crosby  r.  Wyatt,  10  New  Hamp.  318;  For  special  case  on  this  subject,  see 

Hamilton  v.  Winterrowd,  43  Ind.  393;  Hansberger's    Admr.    v.  Kinney,    13 

New  Hampshire  Savings  Bank  v.  Ela,  Gratt.  (Va.)  511. 
11   New  Hamp.  335;  Jarvis  v.  Hyatt, 


PAYMENT   OF   INTEEEST   IN   ADVANCE.  413 

of  a  binding  contract  to  forbear  and  delay  the  time  of 
payment,  and  no  suit  can  be  maintained  against  the  maker 
during  the  period  for  Avhich  the  interest  has  been  paid,  nnless  the 
right  to  sue  be  reserved  by  tlie  agreement  of  the  parties.  The 
payment  of  the  interest  in  advance  is  not  of  itself  a  contract  to 
delay,  but  is  evidence  of  such  contract,  and  while  this  evidence 
may  be  rebutted,  yet  in  the  absence  of  any  rebutting  evidence  it 
becomes  conclusive."  *  Where  a  bond  creditor,  by  agreement 
with  the  principal,  received  interest  in  advance  on  the  bond,  it 
was  held  that  equity  would  restrain  an  action  on  the  bond  durino- 
the  period  for  which  interest  was  paid,  and  would  discharge  the 
surety.  The  court  said:  "  If  in  such  a  case  the  time  for  j)ayment 
of  the  interest  could  be  explained  consistently  with  the  action, 
that  would  alter  the  case;  but  if  it  appeared  simply  that  the  six 
months' interest  had  been  given,  what  could  the  imagination  suo-- 
gest  but  a  contract  ipsissimis  verbis  that  the  creditor  should  not 
sue  for  that  time.  Besides,  the  interest  being  paid,  would  a  court 
of  equity  endure  that  the  creditor  should  put  that  interest  into 
his  pocket  and  the  next  day  sue  for  the  principal?'"  Whei-e  the 
fact  of  payment  of  interest  in  advance,  and  an  agreement  to  ex- 
tend the  time  of  payment,  are  indorsed  on  the  back  of  a  note 
but  it  does  not  appear  by  whom  the  interest  was  paid,  tliis  is  not 
sufficient  evidence  to  discliarge  the  surety,  for  the  interest  may 
have  been  paid  by  him.^  A  indorsed  a  note  for  the  accom  modation 
of  a  prior  indorser,  B.  When  the  note  becomes  due,  C,  tlie 
holder,  called  on  B  who  asked  for  time,  and  gave  his  note  to  C 
for  the  legal  interest  on  the  note  for  thirty  days,  which  C  accept- 
ed but  did  not  expressly  agree  to  wait.  Held,  A  was  discharo-ed. 
The  court  said,  that  accepting  the  note  for  the  interest  amounted 
to  an  agreement  to  give  time,  and  was  as  strong  an  evidence  of 
it  as  was  possible  to  be  given.  The  consideration  was  sufficient 
because  the  interest  note  when  it  became  due  would  itself  bear 
interest,  whicli  would  not  have  been  so  if  the  interest  had  not 
thus  been  converted  into  principal.*  If  the  agreement  to  pay 
interest  for  the  extended  period  is  for  any  reason  void,  the  a^-ree- 
ment  for  extension  is  not  binding  and  the  surety  is  not  dis- 
charged.*    If  a  surety  on  a  note  upon  which  interest  has  been 

'  Scott  V.  SafFold,  37  Ga.  384.  *  Walters  v.  Sv/allow,   6    Wharton 

2  Blake  v.  White,  1  Younge  &  CoU.  (Pa.)  446. 

(Exch.)  420.  « Douglass  v.  The  State,  44  Ind.  67. 
»Cheekv.  Glass.SInd.  286. 


414  DISCHARGE    OF    SURETY   BY   GIVING    OE    TIME. 

paid  from  time  to  time  in  advance,  and  so  indorsed  npon  the  note, 
enter  into  a  new  contract,  by  which,  for  a  valnable  consideration, 
he  agrees  to  be  holden  for  the  next  six  years,  a  copy  of  the  note 
being  inserted  in  the  new  contract,  he  is  not  discharged  by  the 
reception  of  interest  in  advance  in  a  similar  manner  from  time  to 
time  during  said  six  years.  It  must  be  inferred  that  there  was 
no  objection  by  the  surety  to  snch  payments  in  advance,  and  it  is 
not  reasonable  to  presume  that  the  creditor  wonld  be  willing  to 
receive  no  interest  for  six  years.' 

§  306.  When  payment  of  part  of  debt  sufficient  consideration 
for  giving  of  time. — The  payment  of  part  of  a  debt  by  the  prin- 
cipal, at  the  time  or  after  it  becomes  due,  is  not  a  sufficient  con- 
sideration to  support  an  agreement  for  forbearance,  and  an  agree- 
ment for  forbearance  founded  npon  such  consideration,  even 
thongh  carried  out  by  the  creditor,  will  not  discharge  the  surety. 
In  such  case,  "no  beneiit  is  received  by  the  creditor  but  what  he 
was  entitled  to  nnder  the  original  contract,  and  the  debtor  has 
parted  with  nothing  but  what  he  was  already  bonnd  to  pay." ' 
For  the  same  reason,  a  payment  by  the  principal  debtor  of  inter- 
est which  has  already  accrued,  is  not  a  sufficient  consideration  to 
support  an  agreement  for  forbearance.^  Payment  of  part  of  a 
debt  before  it  is  due,  is  a  sufficient  consideratien  to  support  an 
agreement  for  delay  of  payment  of  the  remainder.*  Where  the 
creditor,  in  consideration  of  payment  by  the  principal,  of  a  small 
portion  of  the  debt  one  day  before  it  was  due,  agreed  to  give  one 
year's  time  for  the  payment  of  the  remainder,  it  was  held  the 
surety  Avas  discharged.  The  court  said:  "liaising  the  money  a 
single  day  in  advance  of  the  time  fixed  by  the  original  bill,  maj'' 

^  New  Hampsliire  Savings  Bank  r.  stances,  see  Hunt  v.  Knox,  34  Miss. 

Gill,  16  New  Hamp.  578.  655. 

^Roberts  v.   Stewart,  31  Miss.  664,  ^Johnston  v.   Tliompson,   4  Watts 

per  Handy,    J.;    Sharp  v.   Fagan,  3  (Pa.)  446.     But  where  the  principal 

Sneed  (Tenn.)  641;  Halliday  r.  Hart,  debtor  paid  part  of  the  principal  and 

30  New  York,  474;    Jenkins  t\  Clark-  all  the  interest  on  a  note,  and  an  agree- 

son,  7   Ohio,  72;  Hall  v.   Constant,  2  ment  for  forbearance  was  marked  on 

Hall  (N.Y.)  205;  Mathewson  v.  Straf-  the  back  of  the  note,  it  was  held  the 

ford  Bank,  45  New  Hamp.  104.  Hold-  surety  was  discharged;   see    German 

ing  the  same  thing,  when  partial  pay-  Savings  Assn.   ik  Helmrick,   57  Mo. 

raents  are  made  after  judgment  has  100. 

been  obtained  for  the  debt,  see  Craw-  "'Greely  v.  Dow,  2  Met.  (Mass.)  176; 

ford  V.  Gaulden,  33  Ga.  173.     Holding  Austin  v.  Dorwin,  21  Vt.  38;  Newsam 

the  same  thing,  mider  peculiar  circum-  v.  Finch,  25  Barb.  (N.  Y.)  175. 


AGREEMENT    TO    PAY    INTEREST    AS    A    CONSIDERATION.  415 

have  been  a  great  inconvenience  to  tlie  debtor,  and,  at  the  same 
time,  a  corresponding  advantage  to  the  creditor.  But  the  amount 
of  inconvenience  on  the  one  side,  and  advantage  on  the  other,  are 
matters  of  no  importance  on  a  question  of  this  kind.  It  is  suffi- 
cient that  the  one  or  the  other  existed  in  any  degree,  however 
slight."  ^  The  plaintiff  (who  was  payee  of  a  note  which  was 
signed  by  C  as  principal,  and  the  defendant  as  surety),  being  a 
partner  of  C,  settled  his  partnership  accounts  with  C  before  the 
note  became  due,  and  there  was  found  to  be  $50  due  0  on  account 
of  the  partnership.  It  was  then  agreed  between  the  pLaintiif  and 
C,  that  this  sum  should  remain  in  the  hands  of  the  plaintiff  with- 
out interest,  until  the  note  became  due,  and  should  then  be  ap- 
plied as  part  payment  of  the  note;  and  the  plaintiff  j)romised 
that  he  would  never  call  upon  the  defendant  for  payment,  and 
would  wait  upon  C  three  or  four  years  for  the  remainder.  Held, 
the  defendant  was  discharged,  as  the  contract  between  the  plain- 
tiff and  C  amounted  to  a  payment  of  $50  on  the  note  before  it 
was  due,  and  was  a  good  consideration  for  giving  time.^ 

§  307.  "Whether  agreement  to  pay  interest  for  a  definite  time 
is  sufficient  consideration  for  extension  for  that  period. — If  after 
a  debt  bearing  interest  becomes  due,  the  creditor  agrees  to  extend 
the  time  of  payment  for  a  definite  period  and  the  principal  agrees 
to  pay  the  same  rate  of  interest  the  debt  would  otherwise  bear  for 
that  time,  it  seems  the  better  opinion  that  the  surety  is  thereby 
discharged.^  The  reasoning  upon  which  this  rule  is  founded  has 
been  thus  well  expressed:  "  It  is  a  valuable  right  to  have  money 
placed  at  interest,  and  it  is  a  valuable  right  to  have  the  privilege  at 
any  time  of  getting  rid  of  the  payment  of  interest  by  discharging 
the  principal.  By  this  contract  the  right  to  interest  is  secured  for  a 
given  period,  and  the  right  to  pay  off  the  principal  and  get  rid 
of  paying  the  interest  is  also  relinquished  for  such  period.  Here 
then  are  all  the  elements  of  a  bindino;  contract."*      ISlotwith- 

CD 

1  Uhler  V.  Applegate,  26  Pa.  St.  140,  Wheat    v.   Kendall,    6  New.   Hamp. 

per  Lewis,  C.  J.  504.     In  Stallings  r.  Johnson,  27  Ga. 

^  Whittle  V.  Skinner,  23  Vt.  531.  564,  it  was  held  that  a  promise  by  the 

^Fowler  v.  Brooks,    13  New  Hamp.  principal  to  pay  the  debt  at  the  end  of 

240;  Chute    v.    Pattee,   37  Me.    102;  a  year  was  a  good  consideration  for 

Wood  V.  Newkirk,  15   Ohio   St.   295;  the  promise  of  the  creditor  to  wait  a 

Davis  V.  Lane,  10  New.   Hamp.    156;  year,  and  discharged  the  surety. 

Blazer    v.    Bundy,    15  Ohio    St.   57;  *  Per  Read,    J.,    McCdmb  v.  Kitt- 

Robinson  v.  Miller,  2  Bush  (Ky.)  179;  ridge,  14  Ohio,  348. 


416  DISCnAEGE   OF   SURETY    BY   GIVING   OF   TIME. 

standing  this  reasoning  seems  invincible,  the  contrary  has  been 
repeatedly  held,  the  ground  upon  which  these  decisions  is  found- 
ed being  that  the  j^romise  of  the  principal  to  pay  interest  for  the 
extended  period  creates  no  additional  obligation  upon  him,  as  he 
would  have  been  obliged  to  pay  the  interest  without  any  new 
agreement  if  the  time  had  been  given.'  This,  however,  ignores 
tlie  fact  that  if  there  is  no  new  agreement,  the  debtor  may  at  an}^ 
time  pay  the  debt  and  stop  the  interest. 

§  308.  Special  instances  of  sufScient  and  insufficient  con- 
sideration for  extending  time. — A  binding  agreement  by  the  prin- 
cij^al  to  ])aj  an  increased  and  lawful  rate  of  interest,  is  a  sufficient 
consideration  for  an  agreement  to  extend  the  time  of  payment  of  a 
note.^  An  agreement  for  extension  made  on  Sunday,  when  the 
consideration  is  afterwards  paid  on  a  week  day,  is  valid  and  dis- 
charges the  surety.  The  court  said :  "  "When  that  payment  was 
made  by  the  one  party  and  accepted  by  the  other  on  terms  per- 
fectly understood  by  both,  it  constituted  a  perfect  contract  upon 
a  valid  consideration,  free  from  any  objection  arising  from  the 
previous  conversation  on  Sunday."^  The  surety  in  a  debtor's 
relief  bond  is  discharged  if  the  obligee,  for  a  valuable  considera- 
tion, extend  the  time  for  the  principal  to  make  his  disclosure 
beyond  the  six  months  prescribed  in  the  bond.  The  time  for  the 
disclosure  was  continued  at  the  request  of  the  creditor,  and  it 
was  held  that  the  consent  of  the  debtor  to  such  continuance  was 
a  sufficient  consideration  for  the  agreement  to  continue."  A  party 
sold  another  a  mule,  for  the  price  of  which  the  purchaser  gave 
his  note,  with  a  surety.  The  seller  warranted  the  mule  to  be 
sound,  and  when  the  note  came  due  the  purchaser  claimed  that 
the  mule  was  unsound,  and  insisted  upon  returning  it.  The 
seller  then  .agreed  with  the  purchaser  that  if  he  would  keep  the 
mule  the  time  of  payment  of  the  note  should  be  extended  to  the 
next  Christmas.  Held,  the  agreement  of  the  purchaser  to  keep 
the  mule  when  he  claimed  the  right  to  return  it,  was  a  sufficient 
consideration  to  support  the  agreement  of  the  creditor  to  extend 

'  Reynolds  r.  Ward,  5  "Wend.  501;  ^  Uhler  v.  Applegate  26  Pa.  St.  140, 

Woolford  i\  Dow,  34  111.  424;  Abel  v.  per  Lewis,  C.  J. 

Alexander,   45  Ind.   523;    overruling  *  Phillips  ?'.  Rounds,  33  Me.  357.  Up- 

Pierce  v.  Goldsberry,  31  Ind.  52.  on  the  subject  of  what  is  a  sufficient 

'Huff '(,'.  Cole,  45   Ind.   300.     Upon  consideration  for  a  giving  of  time,  see 

this    subject   see,   also,    Halstead   v.  Ducker  t\  Rapp,  67  New  York,  464. 
Brown,  17  Ind.  202. 


PAYMENT    OF    USURY  AS  A  CONSIDERATION  FOR  EXTENSION.     417 

the  time.^  An  unexecuted  promise  bj  a  principal  to  confess 
jiidgnjent  as  collateral  security  for  the  debt,  is  not  a  sufficient 
consideration  for  a^n  agreement  to  extend  time/  A  promise  by 
the  principal  to  pay  the  debt  out  of  the  proceeds  of  a  particular 
judgment,  or  if  that  fails,  then  out  of  a  particular  note,  is  not  a 
sufficient  consideration  for  an  extension  of  time,  as  it  amounts  to 
no  more  than  telling  the  creditor  where  the  principal  expects  to 
get  the  money  with  which  to  pay.^  After  a  debt  is  due,  an 
agreement  made  between  the  principal  and  creditor  that  the  same 
shall  be  paid  by  instalments,  at  stated  times  in  the  future,  even 
if  one  of  such  instalments  is  paid  when  due,  is  without  sufficient 
consideration,  and  does  not  discharge  the  surety  on  the  original 
obligation/ 

§  309.  When  payment  of  usury  sufiBcient  consideration  for 
extension  of  time — Agreement  to  pay  usury  not  sufHcient. — The 
actual  payment  in  advance  of  usurious  interest  by  the  principal 
to  the  creditor,  is,  where  it  cannot  be  recovered  back,  and  has  been 
sometimes  held  to  be  when  it  can  be  recovered  back,  a  sufficient 
consideration  for  an  agreement  extending  the  time  of  payment  of 
the  debt.'  The  reason  given  for  this  in  one  case,  was  that  even 
if  the  usurious  agreement  was  void,  no  one  but  the  party  paying 
it  could  take  advantage  of  it.  The  creditor  who  received  the 
usury  could  not  afterwards,  on  his  own  motion,  repudiate  the 
contract  on  which  he  received  it.®  In  another  case  it  was  said  that: 
''Between  the  parties  to  it  *  (the)  contract  (for  extension)  was 
like  one  between  an  adult  and  an  infant,  which  though  voidable 
by  the  minor  party,  is  nevertheless  binding  on  the  other  party.'" 
In  another  case  it  Avas  said  that  "Where  both  contracts  are  exe- 

•  Worthan  v.  Brewster,  30  Ga.  112.  Dor  win,  21  Vt.  38;  Vilas  v.  Jones,  10 
« Hunt  V.  Knox,  34  Miss.  655.  Paige  Ch.  R.  76;  White  v.  Whitney,  51 
^Wadhngton   v.  Gary,  7  Smedes  &       Ind.   124;  Wittmer  v.  ElHson,  72  111. 

Mar.  (Miss.)  522;  to  same  effect,  see  301;  Cox  v.  The  Mobile  and  Girard  R. 

Grover  v.  Hoppock,  2  Dutcher  (N.  J.)  R.  Co.  44  Ala.  611;  DanforHi  v.  Sem- 

1 91.  pie,  7  Chicago  Legal  News,  203;  Myers 

*  Van  Rensselaer  v.  Kirkpatrick,  46  v.  First  National  Bank,  78  111.257; 
Barb.  (N.Y.)  194.  Redman  v.  Deputy,  26  Ind.  338;  Cal- 

5  Scott  r.  Saffold,  37  Ga.^384;  Mon-  vin  v.  Wiggam,  27  Ind.  489;  Scott  v. 

tague  V.   Mitchell,  28  111.*  481;   Har-  Harris,  76  Nor.  Car.  205. 

bert  V.  Dumont,  3  Ind.  ,346;  Kennedy  «Turrill  v.  Boynton,  23  Vt.  142. 

r.  Evans,  31  111.  258;  Cross   v.  Wood,  '  Kenningham  v.  Bedford,  1  B.  Mon. 

30  Ind.  378;  Grafton  Bank  v.  Wood-  (Ky.)  325,  per  Robertson,  C.  J. 
ward,  5   New  Hamp.    99;    Austin  i\ 
27 


418  DISCIIAKGE    OF    SURETY    BY    GIVING    OF    TIME. 

cnted,  the  indulgence  given  and  the  consideration  paid,  it  seems 
to  me  there  is  no  ground  left  for  the  application  of  the  rule  be- 
longing to  the  case  of  the  executory  agreement,"  *  It  is,  however, 
well  settled  that  a  mere  promise  to  pay  usury,  or  giving  a  note 
for  the  same  without  an  actual  payment  in  advance  of  such  usury, 
is  not  a  sufficient  consideration  for  an  agreement. to  extend  the 
time  of  payment,  because  such  promise  and  note  are  utterly  void." 
And  the  actual  payment  of  the  usury  promised,  or  for  which  the 
note  was  given,  after  the  extended  time  has  expired,  will  not  make 
any  difference  in  the  rule,  nor  work  the  discharge  of  the  surety.^ 

^  310.  Cases  holding  payment  of  usury  not  sufficient  consid- 
eration for  extension. — Where  a  statute  declared  "void  all  con- 
tracts infected  with  usury,"  it  was  held  that  the  actual  payment 
of  usurious  interest  in  advance  was  not  a  sufficient  consideration  to 
support  a  contract  for  extension.  The  court  said:  "The  con- 
tract for  usury  is  equally  void,  whether  the  money  is  actually  paid 
or  only  promised  to  be  paid  at  a  future  day.  The  statute  has 
made  no  distinction.  ''^  Though  the  debtor  parts  with  the 
money,  it  still  belongs  to  him,  and  he  may  sue  the  next  moment 
and  recover  it  back.  ^''  If  he  agrees  to  give  more  (than  legal 
interest)  the  agreement  is  void,  and  though  the  agreement  be  ex- 
ecuted by  paying  the  money,  it  is  still  void,  and  the  money  may 
be  recalled  at  pleasure."*  The  same  thing  has  been  held,  where 
the  statute  provided  that  any  payment  of  usury  should  operate 
as  a  payment  of  so  much  on  account  of  the  principal,  and  the 
payment  was  made  after  the  debt  became  due,  and  before  the 
time  of  extension  expired.^     So,  where  the  statute  provided  that 

'  Armistead  r.  Ward,  2  Patton,  Jr.  14  Texas,  600;  Scott  v.  Hall,  6  B.  Mon. 

&  Heath,  (Va.)  504,  per  Thompson,  J.  (Ky.)  285;  contra,  Riley  v.  Greg^-,  16 

^Braman  v.  Howk,  1  Blackf.  Ind.  Wis.  666;  Kelly  i'  Gillespie,  12  Iowa, 

392:  Wilson  v.  Langford  5  Humph.  55;    Camp   v.    Howell,  37    Ga.    312; 

(Tenn.)  820;  Hunt  v.  Postlewait,  28  Corielle  v.  Allen,  13  Iowa,  289. 

Iowa,  427;  Galbraith  ».  Fullerton,  53  ^'Bm-gess    v.    Dewey,  33    Vt.    618; 

111.  126;  Anderson  v.  Mannon,    7  B.  Smith  v.  Hyde,  36  Vt.  303;  Hartman 

Mon.  (Ky.)  217;  Silmeyer  v.  Schaffer,  v.  Banner,  74  Pa.  St.  36. 

60  111.479;  Cox  V.   Mobile  &  Girard  *  Vilas  v.  Jones,   1  New  York,  274, 

R.  R.  Co.  37   Ala.  320;    Roberts  v.  per  Bronson,  J.    To  the  same  effect, 

Stewart,  31   Miss.  664;  Kyle  v.  Bost-  see  Meiswirtkle  i\  Jung.  30  Wis.  361; 

ick,  10  Ala.  589;  Tudor  v.  Goodloe,  see,  also,  Farmers  &  Traders  Bank  ». 

I  B.  Mon.  (Ky.)  322;  Gilder  v.  Jeter,  Harrison,  57  Mo.  503. 

II  Ala.  256;  Pyke's  Admr.  r.  Clark,  ^Cornwell  v.   Holly,   5  Richardson 
3  B.  Mon.  (Ky.)  262;  PajTie  v.  Powell,       Law  (So.  Car.)  47;  Jenness  v.  Cutler, 


TUllZ    GIVEN    BY    ONE    OF    SEYEKAL    CEEDITORS.  419 

where  Tisurlous  interest  was  paid  by  the  debtor,  he  miglit  sue  the 
creditor  and  recover  it  back,  it  was  held  that  the  actual  payment 
of  usury  was  not  a  sufficient  consideration  for  extension.  The  court 
said:  "Here  the  reception  or  reservation  of  usurious  interest 
is  an  illef^al  act,  and  so  far  from  being  binding,  it  is  inoperative, 
for  the  reason  that  it  is  expressly  provided  by  statute  that  such 
interest  may  be  recovered  by  the  j)erson,  etc.,  who  may  have  paid 
it,  with  damages,"  ^ 

§  311.  How  far  surety  discharged  by  time  given  by  one  of 
several  creditors — Surety  -who  becomes  such  ■without  kno^wledge 
of  principal,  discharged  by  giving  of  time. — If  one  of  two  joint 
obligees  makes  such  an  arrangement  with  the  principal  for  time 
as  is  siifficient  to  discharge  the  surety,  the  surety  is  entirely  dis- 
charged, for  the  act  of  one  of  several  joint  obligees  is  the  act  of 
all.^  But  if  two  separate  parties,  who  are  not  partners  nor  in 
any  way  connected,  are  equitable  owners  of  an  execution,  and  one 
of  them  consents  to  a  stay  of  execution,  and  does  such  acts  as 
will  discharge  the  surety,  that  fact  will  nol  discharge  the  surety 
as  to  the  part  of  the  execution  owned  by  the  other  party.'  A 
surety  wJio  becomes  such  without  the  request  of  the  principal, 
and  after  the  principal  has  become  bound,  is  at  least  as  between 
himself  and  the  creditor  a  surety,  and  is  discharged  by  the  giving 
of  time  to  the  principal.^  The  same  thing  was  held  where  a 
surety  became  such  without  the  knowledge  of  the  principal. 
The  court  said,  tliat  although  in  such  a  case  the  principal  was 
not  bound  to  the  surety,  yet  the  surety  was  to  all  intents  and 
purposes  a  surety,  and  entitled  to  subrogation  upon  payment  of 
the  debt,  as  the  right  to  subrogation  did  not  depend  upon  con- 
tract, but  on  the  elementary  principles  of  equity.^  In  such  a  case, 
where  it  was  claimed  that  the  addition  of  the  name  of  the  surety 
was  an  alteration  of  the  note,  which  made  it  void,  the  court  said 
the  note  was  not  void  in  any  event,  unless  the  principal  chose  to 
avoid  it,  and  it  Y^as  held  that  the  surety  was  discharged  by  time 
giv^en  the  principal." 

12  Kansas,  500.     To  similar  effect,  see  ^Givens  v.   Briscoe,   3  J.  J.  Marsh 

Wiley  V.  Hio-ht,  39  Mo.  130.  (Ky.)  529. 

'Shawv.  Binkard,  10  Ind.  227,  per  *Talmage  v.  Burlingame,  9  Pa.  St. 

Hanna,  J.     To  same  effect,  see  Good-  21. 

hue  V.  Palmer,  13  Ind.  457.  ^  Peake  v.  Estate  of  Dorwin,  25  Vt. 

» Clark  V.  Patton,  4  J.  J.  Marsh  (Ky.)  28. 

33.  « Howard  v.  Clark,  36  Iowa,  114. 


420  DISCHARGE    OF    SURETY    BY    GIVING    OF    TIME. 

§  312.  Surety  discharged  if  time  is  given  after  debt  is  due — 
Other  cases  holding  surety  discharged  by  extension  of  time. — If 
tlie  agreement  for  extension  is  not  made  till  after  the  debt  is  due, 
it  will  have  the  same  effect  to  discharge  the  surety  as  if  made 
before.'  Giving  time  to  the  maker  discharges  the  iudorser  of  a 
note.''  Granting  an  extension  to  the  drawer  of  a  bill  of  exchange, 
discharges  the  accommodation  acceptor  thereof,  who  is  at  the  time 
known  by  the  holder  to  be  such.^  The  surety  is  not  deprived  of 
his  rights  as  such  by  the  fact  that  nineteen  days  after  the  matur- 
ity of  the  note  for  which  he  is  bound,  he  gives  a  mortgage  to 
secure  the  debt,  which  is  stated  in  terms  to  be  an  additional 
security  for  the  payment  of  the  note.^  Giving  time  to  the  prin- 
cipal in  a  forthcoming  bond  discharges  the  surety  therein.^  The 
surety  in  an  arbitration  bond  is  discharged  if  the  time  for  mak- 
ing the  award  is  extended  beyond  the  time  limited  in  the  bond.*" 
If  a  party  having  a  claim  against  an  estate  give  the  administrator 
time  for  payment  beyond  that  prescribed  by  law,  the  sureties  on 
the  administrator's  bond  are  discharged  from  all  liability  for  the 
payment  of  such  debt.'^  "Where  a  guardian  made  a  surrender  of 
liis  property,  and  his  wards,  in  whose  favor  the  bond  was  given, 
consented  to  and  voted  for  a  sale  of  the  property  on  terms  of 
credit,  when  credit  could  not  have  been  given  without  such  con- 
sent, it  was  held  that  such  consent  was  a  giving  of  time,  and 
discharged  the  surety  on  the  guardian's  bond.'  Where  a  promis- 
sory note  was  payable  on  demand,  and  the  creditor,  for  a  valuable 
consideration,  agreed  by  parol  to  give  time  of  payment  to  the 
principal  for  sixty  days,  it  was  held,  the  surety  was  discharged.' 
A  rule  and  usage  of  a  bank,  which  was  well  known  to  a  surety, 
was  to  take  all  accommodation  notes  with  all  the  parties  as  joint 
and  several  promisors,  and  regard  all  the  promisors  as  princi- 
pals, so  far  as  the  bank  was  concerned.     A  party  signed  a  joint 

'TuiTill  V.    Boynton,   23  Vt.   142;  ^ Steele  y.  Boyd,  6  Leigh  (Va.)  547. 

Stowellv.  Goodenow,  31  Me.  5.38;  Car-  ^Brookins    v.    Shumway,    18  Wis. 

kin  V.  Savory,  14  Gray,  528;  Veazie  v.  98. 

Carr,  3  Allen,  14.  'Pyke  v.  Searcy,  4  Porter  (Ala.)  52; 

^  McGuire  v.  Woodbridge,  6  Robin-  to  a  contrary  effect,   see  Gillet  v.  Ra- 

sen  (La.)  47;  Veazie  v.  Carr,  3  Allen,  14.  cbal,  9  Robinson  (La.)  276. 

^Davies    v.    Stainbank,    6    DeGex,  *  Brown  r.  Roberts,  14  La.  An.  256. 

Maen.  &  Gor.  679.  » Grafton  Bank  v.  Woodward,  5  New 

*  Gumming  v.  Bank  of  Montreal,  15  Hamp.  99. 
Grant's  Ch.  R.  686. 


MISCELLANEOUS    CASES    OF   DISCHARGE   BY    EXTENSION.         421 

and  several  note  to  the  bank,  being,  in  fact,  a  surety,  and  known 
to  be  such  by  tlie  bank,  but  the  fact  of  suretyship  did  not  appear 
from  the  note.  Held,  he  was  discharged  by  an  extension  of  time 
given  the  principal.  The  court  said,  that  as  long  as  the  creditor 
did  nothing  to  change  the  contract,  the  surety  was  bound  as 
principal.  "  Allowing  the  bank  to  deal  with  sureties  on  the  note 
as  principals,  and  to  treat  them  accordingly,  confers  the  power  to 
do  so  in  that  contract  to  the  fullest  extent,  but  gives  no  right  to 
make  them  parties  to  another  contract  which  increases  their  lia- 
bility. Such  construction  would  admit  the  bank  to  hold  sureties 
perpetually  liable,  and  at  the  same  time  deprive  them  of  the 
right  to  pay  the  debt  and  resort  to  their  principal." ' 

§  313.  Miscellaneous  cases  holding  surety  discharged  by  en- 
tension  of  time. — A  composition  deed  by  which  the  creditor 
agrees  to  receive  a  certain  per  cent,  of  all  debts  due  from  the 
makers  of  a  note,  in  full  discharge  of  the  same,  to  be  paid  at  a 
time  beyond  the  maturity  of  the  note,  operates  as  an  extension  of 
the  time  of  payment,  and  discharges  the  surety."  Extending  the 
time  of  payment  of  a  note  by  an  agreement  written  on  a  separate 
piece  of  paper,  discharges  the  surety  on  the  note.'  Principal  and 
sureties  executed  a  bond,  conditioned  that  the  principal  should 
collect  debts  due  tiie  obligee,  and  account  faithfully  for  his  trans- 
actions as  often  as  required,  and  at  least  on  the  first  day  of  Sep- 
tember of  each  year.  The  principal  collected  money,  for  which 
he  rendered  an  account  to  the  obligee,  who  thereupon  gave  the 
principal  time,  upon  his  executing  a  trust  deed  of  his  property  to 
secure  the  amount  collected:  Held,  the  sureties  were  discharged. 
The  court  said  it  made  no  difference  that  the  principal  might 
collect  further  sums  under  his  agencj^  and  proceeded:  "An  ac- 
tion for  any  sum  of  money,  actually  collected,  accrues  as  soon  as 
it  is  collected;  and  if  that  action  be  suspended,  such  suspension 
appears  to  the  court  to  release  the  sureties  with  respect  to  the 
sum  so  suspended  as  completely  as  they  would  be  released  from 
the  whole  bond  if  the  whole  money  had  been  collected."  *  Where 

>  Lime  Rock  Bank  v.  Mallett,  42  Me.  brough,  220,  per  Marshall,  C.  J.  Hold- 

349,  per  Tenney,  C.  J.  ing  that  surety  in  sealed  bond  is  dis- 

^  Perry    i\    Armstrong,     39      New  charged  at  law  by  time  given  before 

Hamp.  583.  breach,    but    not  after    breach,    see 

^  Dunham  v.  Countryman,  66  Barb.  United  States  v.  Howell,  4  Washing- 

(N.  Y.)  268.  ton,   620.     See,   also,   on  this  point, 

■*Hopkirk  r.  M'Conico,    1  Brocken-  Hayes  v.  Wells,  34  Md.  512. 


422  DISCHAKGE   OF    SURETY   BY   GIVIXG    OF   TIME. 

after  judgment  against  principal  and  surety,  the  creditor  agreed 
to  take,  within  a  certain  time,  land  from  the  principal  for  part  of 
the  debt,  it  was  held  that  the  surety  was  discharged.  If  the 
surety  had  paid  the  debt  within  that  time,  he  could  only  have 
received  payment  from  his  principal  in  land  instead  of  money, 
and  his  rights  could  not  be  thus  changed,  and  he  held  liable.^ 
Where  the  holder  of  a  bill  of  exchange  agreed  with  the  acceptor 
that  lie  would  not  look  to  the  acceptor  for  payment  till  he  had 
exhausted,  without  success,  the  legal  remedies  against  the  indorser, 
it  was  held  the  indorser  was  discharged.'^  Certain  debtors  agreed 
to  pay  their  indebtedness  in  two,  four,  six  and  eight  months  from 
the  date  of  their  agreement,  and  a  surety  became  responsible  that 
they  would  do  so.  About  three  weeks  after  the  date  of  this 
agreement,  one  of  the  creditors  took  for  the  debt,  from  the  prin- 
cipals, certificates  of  deposit,  dated  the  day  they  were  given,  and 
payable. in' two,  four,  six  and  eight  months:  Held,  this  was  a  giv- 
ing of  time,  and  discharged  the  surety,^  A  creditor,  in  renewal 
of  the  notes  of  a  firm  wliich  he  held,  and  which  were  secured  by 
the  bond  of  a  surety,  took  the  individual  notes  of  a  member  of  the 
firm,  payable  at  a  future  time,  signed  in  thiswise:  "  For  the  late 
firm  of  Pease,  Chester  &  Co.  Wm.  J.  Pease:"  Held,  that 
though  time  might  not  thereby  be  given  to  all  the  members  of 
the  firm,  it  was  given  to  the  maker  of  the  renewal  notes,  and  the 
surety  was  discharged.* 

§  314.  Suspending  fine  by  governor  of  state  does  not  release 
surety — Other  cases  holding  surety  not  discharged  by  extension 
of  time. — A  party  was  fined  $500,  and  replevied  (stayed)  the 
judgment  with  surety.  The  Governor  of  the  State  respited  the 
payment  of  $250  of  the  fine  for  six  months.  Held,  the  surety 
was  not  discharged.  The  court  said  the  Governor  had  the  con- 
stitutional right  to  grant  the  respite.  The  surety  knew  this  when 
he  became  such  ''  and  must  be  held  to  have  agreed  tliat  its  exer- 
cise should  not  impair  or  destroy  his  obligation  to  pay  the  debt." 
Tliis  power  of  the  Governor  cannot  be  embarrassed  or  clogged  by 
the  danger  of  ultimate  loss  of  the  amount  of  the  fine  arising 
from  the  release  of  the  person  who  may  have  replevied  it.  A 
distinction  is  made  between  the  case  of  the  state  and  a  private 

^  Bangs  V.  Strong,  7  Hill  (N.Y.)  2o0.  ^  q^oss  v.  Parrott,  16  Cal.  143. 

-Ige  V.   Bank  of   Mobile,    8  Port.  "Farmers  &;   Mechanics'    Bank    v. 

(Ala.)  108.  Kreheval,  2  Mich.  504. 


MISCELLANEOUS  CASES  IIOLDIXa  SUEETY  NOT  DISCHARGED.     423 

individual.'  If  the  creditor  notify  the  princiiDal  that  if  he  does 
not  pay  before  a  certain  time,  suit  will  be  commenced  ai<ainst 
him,  this  is  not  such  an  agreement  to  give  time  as  discharges 
the  surety.'  The  holder  of  a  note  received  from  the  principal 
two  four-months  bills,  accepted  by  the  principal,  the  aggregate 
of  which  equaled  the  amount  of  the  note,  with  the  understanding 
that  if  the  bills  were  paid  they  should  discharge  the  note,  but* 
the  note  was  not  to  be  canceled  nor  any  part  of  its  "  obligation 
surrendered  until  these  acceptances  were  taken  up."  One  of  the 
bills  was  sold  and  the  amount  credited  on  the  note,  but  not  beino: 
paid  the  credit  was  scratched  oif.  Held,  the  surety  was  not  dis- 
charged, as  the  creditor  might  at  any  time  have  sued  the  note.* 
A  statute  provided  that  "a  surety  against  whom  a  judgment 
may  be  rendered  may  obtain  judgment  against  his  principal  im- 
mediately for  the  amount  for  which  he  has  been  made  so  liable." 
Judgment  was  recovered  against  a  principal  and  surety,  and  the 
creditor  stayed  execution  for  six  months.  Held,  the  surety  was 
not  discharged,  because  his  remedy  against  the  principal  was  not 
suspended."  Where  a  creditor  before  judgment  agreed  that  the 
principal  should  have  the  privilege  at  any  time  within  sixty  days 
after  judgment  of  paying  the  debt  in  books,  it  was  held  the 
surety  was  not  discharged.  The  court  said  there  was  no  mutuality 
in  the  agreement.  The  principal  might  deliver  the  books,  but 
was  not  bound  to  do  so.  The  creditor  had  a  right  to  proceed  at 
any  time  on  the  judgment.^  Three  notes  were  made  by  principal 
and  surety.  After  two  of  them  became  due,  and  before  the  ma- 
turity of  the  third,  the  principal  gave  the  creditor  an  agreement 
to  pay  him  two  per  cent,  interest  on  all  the  notes  after  they  be- 
came due.  Held,  this  alone  did  not  amount  to  an  agreement  to 
gi\'e  time  nor  discharge  the  surety." 

§  315.  Miscellaneous  cases,  holding  surety  not  discharged  by- 
extension  of  time. — Where  a  surety  became  bound  that  his  prin- 
cipal would  account  for  all  money  received  by  him  for  the  obligee, 
and  the  principal  collected  money  and  rendered  an  account  to  the 
obligee  wdiicli  was  false,  and  less  than  the  amount  collected,  and  the 
obligee  gave  t^e  principal  time  upon  the  amount  rejDorted  due, 

^Nallr.  Springfield,  9  Busli  (Ky.)  -^ Peay  t;.  Poston,  10  Yerg.   (Tenn.) 

673,  per  Lindsay,  J.  111. 

^  McGuire  tJ.  Bry,  3  Robinson  (La.)  *  Wool  worth  v.   Brinker,    11    Ohio 

196.  St.  593. 

«  Weller  v.  Ranson,  34  Mo.  362.  « Claiborne  v.  Bivge,  42  Texas,  98. 


42-1  DISCHARGE    OF    SUKETY    BY   GIVING    OF   TIME. 

it  was  held,  tlie  surety  was  discharged  from  liability  for  the 
amount  reported  due,  but  not  from  liability  for  the  amount 
concealed.^  It  has  been  held  that  a  contract  with  an  inter- 
mediate holder  of  a  note  to  give  time  to  the  principal  does 
not  discharge  the  surety  as  against  a  subsequent  hona  fide 
holder,  eve^  where  the  note  is  over  due  when  the  time  is  given 
'and  the  subsequent  holder  tahes  it.^  It  has  been  held  that  the 
drawer  of  a  check  is  not  a  surety  for  the  payee,  though  it  be  lent 
to,  or  drawn  for,  the  accommodation  of  the  payee,  and  the  drawer 
is  not  discharged  by  an  extension  of  time  given  to  the  payee.' 
"Where  A  and  B  were  partners  and  dissolved  their  partnership, 
and  A  agreed  to  pay  the  firm  debts,  which  facts  were  known  to 
the  creditor,  and  the  creditor  afterwards  granted  A  an  extension 
of  time,  it  was  held  that  B  was  not  discharged  thereby/  A  guar- 
anty provided  as  follows:  "B  informs  me,  that  in  conversation 
with  Mr.  S.  of  your  firm,  he  stated  to  B  if  he  would  get  me  to  be 
responsible  for  him  to  you,  or,  in  other  words,  to  give  B  a  letter 
of  credit  to  you,  he  would  sell  him  on  longer  time — say  nine 
months  or  a  year,"  and  then  went  on  to  guaranty  $1,000.  Sepa- 
rate parcels  of  goods  were  purchased  from  time  to  time,  and  for 
each  parcel  B's  note  at  six  months  was  taken.  Held,  the  taking 
of  the  notes  was  not  a  waiver  of  the  right  to  resort  to  the  guaran- 
tor, and  it  was  not  a  condition  of  the  guaranty  that  at  least  nine 
months  credit  should  be  given  to  B.^  "Where  upon  the  back  of  a 
note  payable  on  demand,  there  was  indorsed  by  consent  of  all 
parties,  the  following:  "This  note  is  to  be  paid  off  within  three 
years  from  date,"  and  the  holder  did  not  compel  payment  of  the 
note  M'ithin  three  years,  it  was  held  the  surety  was  not  discharged, 
as  the  indorsement  only  amounted  to  a  promise  by  the  principal 
to  pay  the  money  within  three  years,^  Judgment  was  rendered 
against  principal  and  sureties  in  a  replevin  bond,  in  consequence 
of  a  compromise  with  the  principal,  and  on  an  agreement  to  give 
four  months  time  for  the  payment  of  the  judgment.     The  exten- 

^Hopkirk  v.  M'Conico,  1  Brocken-  3Com.  Law,   495;   -wliich  last  case  is 

brough,  220.  overruled— Maingay    v.    Lewis,    Irish 

''Devore  v.  Mundy,  4  Stroblaart  Law  Rep.  5  Com.  Law,»229. 

(So.  Car.)  15.  ^  Lawton  v.  Maner,   10  Richardson 

3  Murray  v.  Judah,  6  Cowen,  484.  Law  (So.  Car)  323. 

^  Swire    r.    Redman,    Law    Rep.   1  ®  Lawrence  i\  Walmsley,  12  J.  Scott 

Queen's  Bench,    Div.  536.     To  same  (N.  S.)  799. 
effect,  see  Maingay  v.  Lewis,  Irish  Rep. 


TAKING  KOTE  FOK  EXTENDED  PEKIOD.  425 

sion  of  time  was  not  a  part  of  the  judgment,  but  was  evidenced 
by  a  paper  afterwards  executed.  The  attorney  for  tlie  principal 
told  the  creditor  at  the  time  the  agreement  for  extension  was  ex- 
ecuted, that  the  sureties  consented  to  the  same,  and  there  was  no 
consideration  paid  for  the  extension.  Held,  there  was  no  valid 
agreement  for  extension,  and  the  sureties  were  not  discharged.' 
§  316.  If  creditor  take  principal's  note  for  extended  period, 
it  enlarges  the  time  and  discharges  the  surety. — When  the  prin- 
cipal and  surety  are  bound  to  the  creditor  by  a  note  or  other 
negotiable  instrument,  if  the  creditor  take  from  the  prin- 
cipal a  new  note''  or  bill  of  exchange^  for  the  debt,  falling  due 
after  the  period  when  the  original  obh'gation  matures,  this  gener- 
ally amounts  to  an  extension  of  time  and  discharges  the  surety. 
It  has  been  said  that:  "The  rule  is  too  well  settled  to  justify  the 
citation  of  authorities  to  support  it,  that  the  giving  of  a  valid 
obligation,  payable  in  the  future,  operates  to  suspend  all  right  of 
action  on  the  consideration  for  which  it  is  given  until  the  expira- 
tion of  the  time  fixed  for  the  payment  of  the  obligation,  and  this, 
although  the  obligation  is  not  itself  payment."  *  Again,  it  has 
been  said  that:  "A  creditor  who,  in  receiving  a  new  note,  sur- 
renders the  first,  novates  his  debt;  the  sureties  it  had  for  the  pay- 
ment of  the  first  are  discharged."^  Where  the  principal  gave 
his  creditor  a  note  for  the  debtj  due  one  day  after  date,  the  surety 
was  thereby  discharged.  The  Court  said  that  taking  a  note  for  a 
debt  was  not  pa^'ment  thereof,  unless  expressly  so  agreed,  "But 
if  the  creditor  takes  the  bill  or  note  of  his  debtor,  payable  at  a 
future  day,  it  is  an  extension  of  credit,  and  he  cannot  legally 
commence  and  sustain  a  suit  for  the  original  indebtedness  until 

» Tousey   v.  Bishop,   22  Iowa,  178.  (N.  Y.)  73;  Simmons  v.  Guise,  46  Ga. 

Holding'    surety    not    discharged,    by  473. 

agreement  to  give  time  under  special  ^  Maingay  v.   Lewis,    Irish   Rep.   5 

circumstances,  see  Agee  v.  Steele,  8  Com.  Law,  229;  Bellingham  v.  Freer, 

Ala.  948;  Jones  v.  Brown,  11  Ohio  St.  1  Moore's  Priv.  Con.  Cas.  333.     Hold- 

601.     Holding',  that  surety  who  pleads  ing  that  taking  a  note  for  extended  pe- 

that  time  has  been  given  the  principal  riod  does  not  ipso  facto  amount  to  a 

need  not  allege  that  it  was  without  his  giving  of  time,  see  Shaw  v.  The  First 

consent,  see  Maingay  v.  Lewis,  Irish  Associated     Reformed     Presbyterian 

Rep.  5  Com.  Law,  229.     Holding  the  Church,  39  Pa.  St.  226. 

precise  opposite,   see  Stone  v.  State  *  Chickasaw  County  v.  Pitcher,  36 

Bank,  8  Ark.  (3  Eng.)  141.  Iowa,  593,  per  Cole,  J. 

'^Hart  r.   Hudson,    6  Duer  (N.  Y.)  *  Morgan  et  al.  v.  Their  Creditors, 

294;     Kelty    v.     Jenkins,     1     Hilton  1  La.  (Miller)  527,  per  Martin,  J. 


426  DISCHARGE    OF    SUKETY   BY    GIVING    OF    TIME. 

such  bill  or  note  becomes  due  and  payable.  '^'  Taking  a  note 
from  a  debtor  for  a  debt  due  on  a  simple  contract,  tliougli  it  does 
not  merge  the  contract,  and  a  suit  may  generally  be  brought 
upon  the  original  consideration  by  producing  and  deliver- 
ing up  the  note  at  the  trial,  has  always  been  considered  a 
valid  agreement  between  the  parties,  and  a  suspension  of 
the  day '  of  payment  until  the  note  becomes  due." '  Where 
principal  and  sureties  were  liable  on  a  note,  and  the  creditor 
agreed  to  extend  the  time  of  payment  and  take  a  less  sum, 
and  toolc  the  note  of  the  principal  for  such  less  sum  for  an 
extended  period,  but  upon  the  stipulation  that  if  the  last  note 
was  not  paid,  the  original  note  should  remain  valid  and  binding, 
it  was  held  that  the  sureties  were  discharged.^  The  holder  of  an 
over  due  non-negotiable  note,  on  which  there  was  a  suret}^, 
accepted  from  the  principal  four  new  negotiable  notes,  three  of 
which  were  payable  at  a  future  day,  and  the  other  on  demand  after 
date,  and  agreed  that  the  original  note  should  remain  in  his 
hands  as  collateral  security  for  the  payment  of  the  new  ones. 
Held,  the  effect  of  this  arrangement  was  to  enlarge  the  time  of 
payment  for  a  part  of  the  debt,  and  to  change  the  character  and 
terms  of  the  contract  with  respect  to  the  whole  of  it,  and  that 
the  surety  was  thereby  discharged.'  Where,  after  a  note  with 
sureties  became  due,  the  creditor  received  payment  of  a  part  of 
it,  and  took  the  negotiable  note  of  the  principal  at  sixty  days  for 
the  remainder,  and  indorsed  on  the  back  of  tlie  original  note,  that 
when  the  sixty  days'  note  was  paid,  it  should  be  a  full  payment 
of  such  original  note,  it  was  held  the  surety  was  discliarged.^ 
After  the  maturity  of  a  note,  the  principal  executed  a  new  note 
due  at  an  extended  period,  which  was  indorsed  by  the  creditor 
and  discounted,  and  the  avails  paid  to  the  creditor,  and  the  orig- 
inal note  was  retained  by  him.  The  principal  paid  $100  on  the 
last  note,  and  another  note  was  made  by  the  principal  for  an  ex- 
tended time,  and  when  it  was  due,  the  principal  paid  $200  on 
it.  Held,  the  surety  was  discharged.  The  court  said  the  facts 
constituted  an  implied  agreement  for  an  extension  of  time,  and 
the  receipt  of  the  money  on  the  new  note  was  a  sufficient  consid- 
eration for  it.     The  fact  that  the  original  note  was  not  surren- 

'  Fellows  V.  Prentiss,  3  Denio,  512.  ^  Andrews  v.  Marrett,  58  Me.  539. 

••'Robinson  v.  Offutt,  7  T.  B.  Men.  "Morton  v.  Roberts,  4  T.  B.  Men. 

lKy.)540.  (Ky.)491. 


TAKIKG    SECURITY    FOR    EXTENDED    TIME.  427 

derecl  made  no  diiFerence,  as  tlie  new  notes  were  not  taken  as  col- 
lateral merely/  An  auctioneer  having  sold  goods,  and  paid  over 
only  a  small  j)ortion  of  the  proceeds,  gave  his  notes  due  at  differ- 
ent times  for  the  balance.  Held,  his  sureties  were  discharged. 
The  court  said:  "  In  this  case  the  debt  was  divided,  and  several 
joortions  of  it  thrown  into  the  form  of  a  negotiable  instrument. 
From  these  facts,  what  bnt  an  ajyreement  to  wait  nntil  their  ma- 
turity  can  be  implied? "  °  When  a  debt  became  due,  the  creditor 
told  the  principal  he  would  wait  if  the  principal  would  pay 
twelve  per  cent,  interest,  but  no  definite  time  of  extension  was 
in  terms  agreed  upon.  A  note  for  one  year's  interest  at  that  rate 
was  given  by  the  j^rincipal  to  the  creditor,  which  was  paid,  and 
another  note  for  interest  given.  Held,  the  surety  was  discharged. 
The  court  said:  "There  is  no  substantial  difference  between 
taking  notes  for  the  interest  only,  and  notes  for  the  principal,  for 
it  is  the  effect  of  the  one  as  clearly  as  of  the  other,  to  show  an 
express  understanding,  that  the  period  for  paying  the  debt  itself 
was  prolonged,  else  for  what  was  the  twelve  per  cent,  paid?"  ^ 

§  317.  Surety  on  bond  and  for  open  account  discharged  by- 
creditor  taking  principal's  note  check  or  trust  deed  for  extended 
time. — If  the  debt  for  which  the  surety  is  bound  is  evidenced  by 
a  bond  or  other  sealed  instrument,  and  the  creditor  take  from  the 
principal,  for  the  debt,  a  note,  bill  or  other  negotiable  instrument 
wliich  falls  due  after  the  original  obligation  matures,  this  usually 
amounts  to  an  extension  of  time,  and  discharges  the  surety.^  In 
a  leading  case  in  which  this  was  held,  the  court  said:  "The 
obligee  thinks  fit  totally  to  change  the  nature  of  the  security  and 
the  credit,  '''^  and  doing  this,  he  does  this  material  injury  to 
the  surety:  lie  has  a  right  the  day  after  the  bond  is  due,  to  come 
here  (into  chancery)  and  insist  upon  its  being  put  into  suit;  the 
obligee  has  suspended  that,  till  the  time  contained  in  the  notes 
runs  out;  therefore,  he  has  disabled  himself  to  do  that  equity  to 
the  surety  which  he  has  a  right  to  demand."  The  court  will  not 
inquire  whether  the  surety  is  benefited  or  not.     "  You  cannot 

1  Hubbard  v.  Gurney,  64  New  York,  &  Heath  (Va.)  504;  Clarke  v.  Henty, 

457..  3  Youiio-e  &  Coll.  (Exch.)  187;  Hooker 

^Mouton  V.  Noble,  1  La.  An.  192,  v.  Gamble,  12  Up.  Can.  C  P.  R.  512; 

per  Eustis,  C.  J.  Smith  v.  Crease's  Exrs.  2  Cranch  C.  C. 

3  Darling  v.   McLean,  20  Up.  Can.  481;  Hooker  v.  Gamble,  9  tp.  Can.  C. 

Q.  B.  R.  372,  per  Robinson,  C.  J.  P.  R.  434;  Bangs  v.  Mosher,  23  Barb. 

*  Arniestead  v.  Ward,  2  Patten,  Jr.  (N.  Y.)  478. 


428  DISCHARGE    OF    SURETY    RY    GIVING    OF    TIME. 

l^eep  liim  bound  and  transact  his  affairs  (for  tliey  are  as  much  his 
as  your  own)  without  consulting  him.  You  must  let  him  judge 
whetlier  he  will  give  that  indulgence,  contrary  to  the  natni-e  of 
liis  engagement."  '  Extending  the  time  of  payment  of  an  open 
account  by  taking  the  note  of  the  j^rincipal  for  it,  discharges  the 
surety.^  Certain  parties  executed  a  bond  by  which  they  became 
sureties  for  three  months  from  the  date  of  the  sales  respectively  for 
any  bills  of  goods  which  might  be  sold  the  principal.*  A  sale  was 
made  and  the  creditor  took  the  negotiable  note  of  the  principal 
for  the  amount,  which,  allowing  days  of  grace,  became  due  one 
day  after  the  three  months'  credit  expired,  and  it  was  held  the 
sureties  were  thereby  discharged.'  Principal  and  sureties  exe- 
cuted a  bond  conditioned  that  the  principal  would  pay  for  all 
sewing  machines  furnished  him  by  the  plaintiff  when  the  j^rice 
■was  due,  or  within  thirty  days  after  notice  of  default  in  such 
payment.  When  the  amount  was  due,  the  plaintiff  took  the  prin- 
cipal's note  therefor,  due  in  three  months,  and  it  did  not  appear 
that  the  same  was  taken  as  collateral  security.  Held,  this  was  a 
giving  of  time  which  discharged  the  sureties  on  the  bond.*  If 
after  the  debt  is  due  the  creditor  accept  from  the  principal  his 
check  for  the  amount,  due  in  fifteen  days,  this  amounts  to  an 
extension  of  time  and  discharges  the  surety.^  So,  where  after 
the  debt  was  due,  the  creditor  received  the  check  of  the  principal 
for  the  amount,  dated  ahead,  and,  at  its  maturity  presented  it  for 
payment,  it  was  held  the  surety  was  discharged.*  So,  also,  where 
such  a  check  was  accepted  by  the  creditor  to  be  in  full  satisfaction 
of  the  debt,  if  paid,  it  was  held  the  surety  was  discharged.'' 
After  a  note,  on  which  principal  and  surety  were  liable,  fell  due 
the  principal  executed  a  deed  of  trust  to  the  creditor,  with  author- 
ity to  the  trustee  to  sell  the  property  conveyed  for  the  satisfaction 
of  the  debt,  after  six  months.     There  was  no  express  agreement 

^Rees  •;;.  Berrington,  2    Yesey  Jr.  *  Place  v.   Mclvain,  3S  New  York, 

540,  per  the  Lord  Chancellor.  96. 

^  Lee  V.  Sewall,  2  La.  An.  940 ;  Myers  •>  Okie  v.  Spencer,  1  MUes,  (Pa.)  299. 

r.  Welles,  5  Hill  (N.  Y.)  463:  Howell  Holding  that  the  creditor  who  receives 

V.  Jones,  1  Comp.  Mees.  &  Ptos.  97;  Id.  a  check  from  the  principal  who  has  no 

4  Tyrwh.  548.  money  in  bank,  but  promises  to  de- 

^Appleton  V.  Parker,  15  Gray,  173.  posit   sufficient  to  meet  it  in  two  or 

*  Weed  Sewing  Machine,Co.  v.  Ober-  three  days,  does  not  thereby  discharge 

reich,  38  Wis.  325.  the  surety,  see  Bordelon  v.  Weymouth, 

"  Albany  City  Fire  Ins.  Co.  v.  De  ven-  14  La.  An.  93. 
dorf,  43  Barb.  (N.  Y.)  444. 


TAKING    NOTE   FOE   EXTENDED    TIME.  429 

for  dela}^,  but  the  Court  held  that  such  an  agreement  was  neces- 
sarily implied,  and  the  surety  was  thereby  discharged.*  After 
the  maturity  of  a  note  on  which  principal  and  surety  were  liable, 
the  principal  gave  the  creditor  a  trust  deed  upon  land  to  secure 
the  note,  and  in  the  trust  deed  provided  that  no  sale  of  the 
land  should  be  made  for  eighteen  months,  and  if,  within  that 
period  the  note  was  paid,  the  trust  deed  should  be  null  and  void. 
This  trust  deed  was  accepted  by  the  creditor,  and  the  court  held 
that  the  time  of  payment  was  extended,  and  the  surety  dis- 
charged.' 

§  318.  When  surety  not  discharged  if  creditor  take  princi- 
pal's note  for  extended  period. — Where  the  surety  in  a  bond 
claimed  to  be  discharged  because  a  note  at  two  months  was  tak- 
en from  the  principal  by  the  creditor,  it  was  held  that  it  was 
competent  to  prove  by  parol  that  it  was  orally  agreed  between 
the  creditor  and  principal  that  taking  the  note  should  not  sus- 
pend the  remedy  on  the  bond.^  Principal  and  surety  were  liable 
on  a  bond,  and  the  creditor  accepted  from  the  principal  his 
promissory  notes,  falling  due  at  a  time  subsequent  to  the  maturity 
of  the  bond,  but  at  the  same  time  clearly  expressed  his  intention 
of  holding  the  surety  on  the  bond,  and  there  was  no  express 
agreement  that  the  notes  should  be  received  as  payment  of  the 
bond.  Held,  the  surety  on  the  bond  was  not  discharged.  The 
notes  were  simply  collateral  to  the  bond,  and  taking  them  did 
not  suspend  the  remedy  on  it,  as  it  was  clearly  the  intention  of 
the  parties  that  such  remedy  should  not  be  suspended.^  "Where 
the  principal  after  the  debt  became  due  gave  the  creditor  a  note 
for  the  amount  at  ten  days  from  date,  but  ante-dated  it  so  that 
it  matured  by  its  terms  before  the  original  debt  was  due,  it  was 
held  there  was  no  extension  and  the  surety  was  not  discharged.^ 
A  held  an  overdue  note  of  B,  indorsed  by  C,  and  D  guarantied 

^  Lea  V.  Dozier,  10  Humph.  (Tenn.)  '  Wyke  v.  Rogers,  1  De  Gex.  Macn. 

447.  &  Gor.  408. 

*Smarrv.  Schnitter,  38M0.47S.    To  ^  Paine  v.  Voorhees,  26  Wis.   522. 

contrary  effect,  see  Headlee,  Aclmr.  v.  For  case  holding  under  peculiar  cir- 

Jones,  43  Mo.  235.     Holding  that  giv-  cumstances  that  notes  for    extended 

ing  time  to  the  principal  in  considera-  time  were  collateral  and  did  not  dis- 

tion  of  a  deed  of  trust  on  personal  charge  the  surety,  see  Fox  v.  Parker, 

property  given  by  the  principal  to  the  44  Barb.  (N.  Y.)  541. 

creditor,    discharges   the  surety,    see  ^  Robinson  v.  Dale,  38  Wis.  330. 
Smith  V.  Clopton,  48  Miss.  66.    See, 
also,  Semple  v.  Atkinson,  64  Mo.  504. 


430  DISCHARGE    OF    SURETY    BY    GIVING    OF   TIME. 

its  payment  within  sixty  days  after  tlie  date  of  the  guaranty. 
Held,  there  was  no  presumption  of  law  that  the  guaranty  was 
taken  for  the  benefit  of  B,  or  that  it  extended  to  him  the  time 
of  payment.  It  was  an  independent  contract,  which  did  not  sus- 
j)eud  the  right  of  action  of  A  against  B,  and  there  being  no  ex- 
press agreement  for  extension,  C  was  not  discliarged.^  A  prin- 
cipal and  two  sureties  were  liable  on  a  note,  and  it  was  agreed 
that  the  principal  might  have  further  time  by  giving  a  new  note 
with  the  same  sureties.  Such  new  note  was  given,  which  was 
signed  by  only  one  of  the  sureties.  In  an  action  on  the  new 
note,  judgment  by  default  was  rendered  against  the  principal, 
bnt  it  was  held  not  obligatory  on  either  of  the  sureties.  Held, 
the  sureties  were  liable  on  the  old  note.  Having  defeated  a  re- 
covery on  the  new  note,  they  were  estopped,  to  set  it  up  as  an  ex- 
tension of  time.'^  A  guaranty  was  as  fo'llows:  "  If  '-^  (A)  pur- 
chases a  case  of  tobacco  on  credit,  I  agree  to  see  the  same  paid 
for  in  four  months."  A  purchased  the  tobacco  and  gave  his  note 
at  four  months  for  it.  Held,  giving  the  note  did  not  discharge 
the  guarantor.'  So  where  a  party  guarantied  the  jmyment  of  a 
bill  of  goods  already  bought,  for  which  the  principal  had  given 
his  note,  and  guarantied  the  payment  for  such  other  bills  as  the 
principal  might  buy,  and  the  principal  bought  other  bills  and 
gave  his  notes  for  them,  but  none  of  the  notes  were  negotiated, 
it  was  held  the  giving  of  such  notes  was  not  a  payment  by 
the  principal  Mdiich  would  discharge  the  guarantor.* 

§  319.  Surety  not  discharged  by  creditor  taking  collateral  se- 
curity for  extended  time. — The  mere  lact  that  the  creditor  takes 
a  collateral  security  for  the  debt  which  matures  after  the  time  the 
debt  for  which  the  surety  is  liable  comes  due,  will  not  discharge 
the  surety  if  it  does  not  amount  to  an  extension  of  the  time  of 
payment.^     If  when  the  collateral  security  is  given  there  is  an  ex- 

'  Williams  t>.  Covillaud,  10  Cal.  419.  ^Sigourney   v.   Wetlierell,    6    Met. 

-Williams  v.  Martin,  2  Duvall(Ky.)  (Mass.)  553;  Shubrick's  Exrs.  v.  Rus- 

491.  sell,   1    Desaussure     (So.   Car.)     315. 

^  Case  V.  Howard,  41  Iowa,  479.  Holding  that  the  taking  of  a  collateral 

*Willey     V.     Thompson,     9     Met.  security  does  not  bar  a  suit  on  the 

(Mass.)  329.     For  a  questionable  de-  principal     debt,     see    Mendenhall  r. 

cision,  holding  that  if  a  legatee  takes  Lenwell,  5  Blackf.  (Ind.)  125;    Dugan 

the  note  of  an  executor  due  one  day  v.  Sprague,  2  Ind.  600;  Mills  v.  Gould, 

after  date,  he  does  not  discharge  the  14  Ind.  278. 
executor's  surety,  see  Cooper  v.  Fish- 
er, 7  J.  J.  Marsh  (Ky.)  396. 


TAKING    COLLATERAL    SECURITY    FOR    EXTENDED    TIME.  431 

l^ress  agreement,  either  that  the  time  of  payment  of  the  debt 
shall  or  shall  not  be  extended  thereby,  such  agreement  will  pre- 
vail. If  there  is  no  express  agreement,  it  has  been  held  that  no 
agreement  to  delay  the  collection  of  an  overdue  debt  is  implied 
from  the  receipt  by  the  creditor  from  the  principal  of  a  note  or 
other  obligation  not  yet  due,  merely  as  collateral  security  there- 
for. In  holding  this  to  be  the  law,  the  following  distinctions 
were  drawn  :  "  There  is  a  class  of  securities  payable  on  time, 
the  taking  of  which,  on  an  antecedent  debt,  implies  an  agreement 
for  the  suspension  of  the  antecedent  debt,  but  that  class  of  cases 
is  confined  to  those  where  the  creditor  accejDts  the  note  or  bill  foi 
and  on  account  of  the  antecedent  debt,  and  the  new  security,  for 
the  time  being,  at  least,  is  to  take  the  place  of  and  represent  the 
original  debt.  That  class  is  distinguishable  from,  and  not  to  be 
confounded  with,  the  class  where  the  creditor  has  accepted  simply 
a  new  additional  or  collateral  security  for  an  antecedent 
debt.  In  the  former  transaction  an  agreement  to  give  time 
may  be  implied,  but  not  out  of  the  latter  transaction."  ^ 
"Where  principal  and  surety  were  liable  on  a  bond,  and  the  cred- 
itor took  from  the  principal  a  new  bond  for  the  same  amount,  due 
at  a  later  period  than  the  first,  and  drawing  a  larger  interest,  but 
with  the  express  understanding  that  the  new  bond  should  be  held 
as  collateral  security,  and  that  the  first  bond  should  remain  in 
force,  it  was  held  that  the  surety  was  not  discharged.''^  After  the 
note  upon  which  a  surety  was  liable,  came  due,  the  principal  gave 
the  ci'cditor  a  bill  of  exchange,  due  in  a  year,  as  collateral  secu- 
rity, and  the  creditor  gave  him  a  receipt  which  stated  that  the 
amount  of  the  bill,  when  collected,  should  be  applied  on  the  note. 
Held,  these  facts  did  not  discharge  the  surety.  It  was  insisted 
that  tliere  was  an  implied  promise  to  indulge  the  makers  of  the 
note  till  the  maturity  of  the  bill.  But  (the  court  said)  we  think 
this  inference  is  entirely  answered  by  the  other  facts  in  the  ver- 

'  Austin  V.  Curtis,  31  Vt.  64,  per  Ben-  of  the  jm'ncipal  with  new  sureties  for 

nett,  J.;   overruling.  Michigan    State  extended  time,  is  taken  by  the  creditor 

Bank  ?'.  Estate  of  Leavenworth,  28  Vt.  as  collateral  to  old  note,  without  any 

209.     Holding  that  a  giving  of  time  agreement  to  give  time,  the  surety  on 

will  be  presumed  from  taking  collat-  the  old  note  is  not  discharged,  see  Globe 

eral  security,  see    Hill  v.  Bostick,  10  Mutual  Ins.  Co.  v.  Carson,  31  Mo.  218. 

Yerg.  (Tenn.)  410.  See,  also,  Newcomb  v.  Blakely,  1  Mo. 

2  Remsen  r.  Graves,  41  New  York,  Appl.  R.  289. 
471.     Holding  that  where  anew  note 


432  DISCIIAKGE    OF    SURETY   BY    GIVING    OF    TIME. 

diet,  for  it  is  found  also  by  the  juiy  that  the  bill  was  taken  as 
collateral  security  merely,  which  shows  that  the  agreement  to 
apply  its  proceeds  to  the  payment  of  the  note,  was  not  understood 
by  the  parties,  as  giving  the  debtor  any  claim  to  indulgence.^ 
A  party  gave  another  a  letter  of  credit,  npon  which  goods  were 
sold.  The  creditor  took  up  a  note  given  by  the  purchaser  for  the 
price,  and  accepted  a  note  signed  by  the  purchaser,  and  another 
due  at  a  time  in  the  future.  The  time  when  this  last  note  became 
due,  was  not  beyond  the  time  for  which  the  guarantor  had  become 
liable.  It  was  held,  that  taking  the  new  note  did  not  discharge 
the  guarantor.*  A  note  of  a  bank  provided  that  the  bond  of  the 
cashier  should  be  renewed  every  year,  but  that  the  renewal  or 
giving  a  new  bond  should  not  affect  the  old  one,  unless  it  was 
actually  surrendered  to  be  canceled.  A  renewal  bond  with  dif- 
ferent sureties  was  given,  but  the  old  one  was  not  surrendered  to 
be  canceled,  and  it  was  held  that  the  sureties  in  the  old  bond 
were  not  thereby  discharged.^ 

§  320.— "When  surety  not  discharged  if  creditor  take  from  prin- 
cipal mortgage  for  extended  time  as  collateral  security  for  the 
debt. — It  has  been  repeatedly_  held  that  the  mere  fact  that  the 
creditor  takes  from  the  principal  a  mortgage  or  trust  deed  of 
property  as  collateral  securety  for  the  debt  for  which  the  surety  is 
liable,  which  matures  after  tlie  maturity  of  such  debt,  does  not 
of  itself,  in  the  absence  of  an  agreement  to  that  eifect,  extend 
the  time  or  discharge  the  surety."  Thus,  where  a  judgment  was 
recovered  against  a  principal,  and  the  creditor  then  took  from 
the  principal  a  deed  of  trust  on  real  estate,  which  stipulated  that, 
if  the  principal  should  not  pay  the  judgment  within  a  year,  the 
trustee  should  sell  the  real  estate  for  the  satisfaction  of  the  debt, 
it  was  held  that  no  time  was  thereby  given  on  the  judgnient,  and 
the  surety  was  not  discharged.^  The  acceptance  by  a  creditor  of  a 
bond  and  mortgage,  payable  at  a  future  day,  as  collateral  security 
for  the  amount  of  an  execution  in  the  hands  of  the  sheriff,  is 

'Wade     V.    Staunton,     5    Howard  see  Frickee  v.  Donner,  35  Mich.  151; 

(Miss.)  G31,  per  Trotter,  J.  Adams  v.  Logan,  27  Gratt.  (Va.)  201. 

*  Norton  v.  Eastman,  4  Greenl.  (Me.)  *  Burke  v.  Cruger,  8  Texas,  66 ;  Wil- 
521.  liams  v.  Townsend,    1  Bosworth  (N. 

*  Pendleton  v.  Bank  of  Kentucky,  1  Y.)  411. 

T.  B.  Mon.  (Ky.)  171.     Holding  sure-  ^  Pendexter  v.   Vernon,    9  Humph, 

ties  not  discharged  by  creditor  taking      (Tenn.)  84. 
collateral  security  for  extended  time, 


TAKING  MORTGAGE  FOK  EXTENDED  PERIOD.        433 

not  ipso  facto  a  stay  of  the  execution.^  After  tlie  maturity  of  a 
note,  upon  wliicli  principal  and  surety  were  liable,  tlie  principal 
executed  and  delivered  to  the  creditor  as  collateral  securety  a 
mortgage  of  real  estate,  to  secure  a  larger  sum  than  the  note,  in 
which  the  amount  of  the  note  was  included.  The  mortoj^ajre  con- 
tained  a  covenant  on  the  part  of  the  mortgagor  to  pay  the  money 
on  a  day  therein  named,  but  no  provision  that  the  right  of  action 
on  the  note  should  be  suspended.  Held,  the  remedy  on  the  note 
was  not  suspended,  and  the  surety  was  not  discharged.^  A  cred- 
itor took  from  the  principal  a  mortgage,  conditioned  that  he 
would  make  a  reconveyance  if  the  debt  for  which  a  surety  was 
liable,  and  other  debts,  were  paid  within  five  years.  There  was 
no  express  agreement  to  wait  live  years,  nor  any  other  time,  and 
it  was  held,  the  surety  was  not  discharged.^  Principal  and  surety 
were  liable  on  several  notes,  maturing  at  different  times,  and  the 
principal  executed  a  trust  deed  of  laud  to  secure  the  payment  of 
the  notes,  which  provided  that,  in  case  of  default  for  thirty  days 
in  the  payment  of  any  of  the  notes,  they  should  all  become  due, 
and  the  trustee  might  sell  the  property  and  pay  all  the  notes, 
whether  due  or  not.  Held,  the  surety  .-was  not  thereby  dis- 
charged.* Where  principal  and  surety  were  liable  on  a  note,  and 
the  principal  assigned  to  the  creditor  all  his  household  goods,  etc., 
as  a  further  security  for  the  debt,  with  the  proviso  that  he  should 
not  be  deprived  of  the  possession  of  the  property  assigned  until 
after  three  days'  notice,  it  was  held  that  no  time  was  given  and 
the  surety  was  not  discharged."  Wlien  tlie  creditor  takes  from  the 
principal  a  mortgage  for  an  extended  time,  as  security  for  the 
debt,  the  surety  may  prove  by  parol,  an  agreement  for  delay 
between  the  principal  and  creditor,  prior  to  the  making  of  the 
mortgage.®  The  mere  fact  that  after  a  surety  has  become  liable, 
the  creditor  takes  a  trust  deed  or  other  security  for  the  debt, 
Avhere  there  is  no  extension  of  time,  will  not  affect  the  liability 
of  the  surety.' 

§  321.      "When  surety  not   discharged   by  extension  for  less   pe- 
riod than  that  in  which  judgment  could  be  recovered — Injunction 

' Bank  of  Pennsylvania  t\  Potius,  10  ^Twopenny  v.   Young,   3  Barn.  & 

Watts  (Pa.)  148.  Cress.  208. 

■•^Brenf^le  v.  Bushey,  40  Md.  141.  « Morse  v.  Huntington,  40  Vt.  488. 

2  Thurston  ».  James,  6  Rhode  Is.  103.  '  Scanland  v.  Settle,  Meigs  (Tenn.) 

morgan  r.  Martien,  32  Mo.  438.  163;  "Oxley  r.  Storer,  54  111.  159. 

28 


4:3i  DISCIIAEGE    OF    SURETY    BY    GIVING    OF   TIME. 

obtained  by  principal. — If  the  time  of  payment  is  extended  for 
a  definite  time,  but  the  extension  expires  before  judgment  could 
liave  been  obtained  against  the  principal,  it  has  been  held,  under 
certain  peculiar  circumstances,  that  the  surety  was  not  thereby 
discharged.  Thus,  where  the  principal  died,  and  the  creditor 
made  a  bindins;  agreement  with  his  administrator  not  to  sue  for 
four  months,  where  by  statute  he  could  not  have  sued  till  a  year 
after  the  death  of  the  principal,  it  was  held  the  surety  was  not 
discharged.'  So  it  has  been  held  that  a  surety  is  not  discharged 
by  the  ci-edltor  taking  from  the  principal  a  cognovit  in  an 
action  he  had  brought  against  the  principal,  with  a  stay  of  exe- 
cution until  a  day  earlier  than  that  on  which  judgment  could 
have  been  obtained  in  the  regular  course,  because  by  the  arrange- 
ment time  was  not  given,  but  the  remedy  was  accelerated.^  Suit 
having  been  brought  against  the  principal  in  a  note,  and  the  ac- 
tion being  soon  for  trial,  the  creditor  took  a  cognovit  from  the 
principal  for  the  debt,  payable  in  three  instalments — the  first  on 
April  28th,  the  others  in  May  and  June;  but  if  the  principal 
failed  in  any  of  these  payments,  the  creditor  was  to  be  at  lib- 
erty to  immediately  epter  up  judgment,  and  issue  execution  for 
the  whole  sum.  The  first  instalment  was  not  paid.  If  the  cred- 
itor had  proceeded  in  his  action  he  could  not  have  obtained  judg- 
ment before  April  28th:  Held,  no  time  was  given,  and  the  surety 
was  not  discharged.^  A  judgment  was  recovered  against  a  party 
in  the  court  below,  from  which  he  prosecuted  a  writ  of  error  to  the 
Supreme  Court,  giving  a  surety  on  the  writ  of  error  bond.  The 
judgment  was  affirmed,  and,  by  virtue  of  a  statute  allowing  it, 
judgment  was  rendered  by  the  Supreme  Court  against  the  prin- 
cipal and  surety.  The  principal  then  got  an  injunction  against 
proceedings  being  had  under  the  judgment,  to  which  latter  pro- 
ceeding the  surety  was  not  a  party:  Held,  the  surety  was  not 
thereby  discharged.* 

^  322.  If  creditor  continue  case  against  principal,  surety 
discharged — Other  cases  holding  surety  discharged  by  extension 
of  time. — Suit  having  been  brought  on  a  note  against  a  principal 

'  Gardner  v.  Van  Nostrand,  13  Wis.  ^  Price  v.  Edmunds,  10  Barn.  &  Cress. 

543.  ^  578;  Id.  5  Man.  &  Ryl.  287. 

*  Hulme  15.  Coles,    2     Simons,    12;  *  Hodges  v.  Gewin,  6  Ala.  478. 

Barker  v.  McClure,  2  Blackf.  (Ind.) 
14;  Suydam  v.  Vance,  2  McLean,  99; 
Fletcher  r.  Gamble,  3  Ala,  335. 


SURETY    DISCIIAEGED    BY    COXTINUANCE    OF    CASE,  435 

and  surety,  the  creditor  by  a  binding  contract  agreed  to  continue 
the  case  one  term,  and  did  so.  Held,  this  was  a  giving  of  time 
Avhich  discharged  the  surety,^  The  obligee  in  a  bond  having 
placed  himself  in  such  a  position  with  regard  to  the  principal, 
that  he  could  not  demand  payment  of  the  bond  until  a  certain 
agreement  entered  into  with  third  parties  had  been  carried  into 
effect,  it  was  held  that  this  was  such  a  givino:  of  time  as  dis- 
charged  the  surety  in  the  bond  ^  A  creditor  who  holds  a  guaran- 
ty to  secure  a  floating  balance,  cannot,  without  the  surety's  con- 
sent, give  time  to  the  principal  for  a  portion  of  the  debt,  and  yet 
hold  the  surety  liable  for  that  portion.^  But  a  contract  of  sure- 
tyship for  the  performance  by  the  vendee  of  a  continuing  agree- 
ment of  purchase  and  sale,  by  which  goods  purchased  from  time 
to  time,  as  required,  are  to  be  paid  for  at  stated  periods,  is  not 
discharged  by  mere  forbearance  on  the  part  of  the  vendor  to  en- 
force payment,  as  provided  by  the  contract,  without  a  binding 
agreement  for  extension  of  time,"  A  contract  provided  that  a 
principal  should  take  from  a  gas  company  tar,  etc.,  and  pay  for 
each  month's  supply  within  the  first  fourteen  days  of  the  ensuing 
month,  after  account  rendered,  "unless  the  company  should, 
by  writing  signed  by  their  secretarj^,  allow  a  longer  time  for  pay- 
ment." More  than  fourteen  days  elapsed  after  a  monthly  bill 
was  rendered,  and  it  was  not  paid,  and  the  secretary  of  the  gas 
company  afterwards  accepted  the  note  of  the  principal  at  thirty 
days  for  the  amount.  Held,  that  assuming  this  to  be  a  giving  of 
time,  by  "  writing  signed  by  the  secretary,"  within  the  meaning 
of  the  contract,  as  such  time  was  given  after  the  breach  of  the 
contract,  the  surety  thereon  was  discharged  from  liabilit}'-  from 
the  bill  for  that  month,  but  not  for  subsequent  months.^  Where 
a  surety  is  liable  for  rent  payable  quarterly,  and  time  is  given  as 
to  one  or  more  instalments,  the  surety  is  discharged  as  to  these 
only,  and  not  from  such  as  to  which  no  time  is  given,  even  though 
they  are  all  secured  by  one  lease,  and  relate  to  the  same  premises.* 

'  Wybrants  v.  Lutcli,  24  Texas,  309.  ^McKecknie  v.  Ward,  58  NewYork, 

To  similar  effect,  see  Phillips  c.  Rounds,  541. 

33  Me.  357.  *  Croydon  Gas  Co.  v.  Dickinson,  Law 

''Cross  V.   Spi-igg,  2  Macn.  &  Gor.  Rep.  2  Com.  PI.  Div.  46 ;' reversing' 

113;  Id.  2  Hall  &  Twells,  223.  Croydon  Gas  Co.   v.  Dickinson,  Law 

^  Davies    v.    Stainbank,    6  DeGex,  Rep.  1  Com.  PL  Div.  707. 

Macn.  &  Gor.  679.  « Ducker  v.  Rapp,  67  New  York, 

464. 


436  DISCHARGE    OF   SUKKTV    BY   GIVING    OF   TIME. 

§  323.  Agreement  for  extension  must  be  made  by  party  having 
authority — Conditional  agreement  for  extension. — All  agreement 
for  an  extension  of  time,  in  order  to  be  valid  and  work  the  dis- 
charge of  the  surety,  must  be  made  on  behalf  of  the  creditor  by 
some  one  having  authority  to  bind  him.  The  holder  of  a  note 
indorsed  in  blank  is  prima  facie  presumed  to  be  the  owner 
thereof,  but  this  presumption  is  rebutted  if  he  declares  he  is  not 
the  owner.^  It  has  been  held  that  the  attorney  of  a  plaintiff  in  a 
suit  has  no  power,  without  express  authority,  to  suspend  an  exe- 
cution issued  in  the  suit  in  which  he  is  attorney.'*  It  has  also 
been  held  that  such  attorney  has  no  power  to  bin^  his  client  by 
an  agreement,  before  judgment,  that  judgment  shall  be  stayed  a 
given  time,  where  such  stay  is  not  incorporated,  in  the  judgment,' 
But  it  has  been  held  that  an  attorney,  appointed,  by  a  creditor  to 
attend  the  examination  of  a  poor  debtor,  has  authority  to  make 
an  agreement  continuing  the  case,  and  in  consequence  a  surety 
was  discharged."  Where  the  board  of  police  of  a  county  con- 
sented that  time  might  be  given  a  principal  upon  his  executing 
a -new  note,  and  paying  interest  and  costs,  and  the  president  of 
the  board,  agreed  to  give  the  principal  time,  without  any  new 
note  being  given,  it  was  held  the  sureties  were  not  discharged, 
as  the  president  had  no  right  to  grant  the  extension  except  upon 
a  new  note  being  given,  and  this  had  not  been  done.*  An  auc- 
tioneer, being  in  arrear  for  auction  dues  coming  to  tlie  state,  the 
state  treasurer  gave  him  time  by  express  agreement.  Held,  he 
liad  no  authority  to  do  so,  and  the  sureties  of  the  auctioneer  were 
not  discharged.*  "Where  an  intestate  was  surety  on  a  note,  it  was 
lield  that  the  administrator  of  such  intestate  had  power  to  consent 
to  an  extension  of  time  to  the  principal,  if  such  extension  was  for 
the  interest  of  the  estate.''  A  conditional  agreement  by  the 
creditor  to  give  time  to  the  principal,  will  not  usually  discharge 
the  surety,  unless  the  condition  is  complied  with,  for  otherwise 
there  is  no  completed  and  binding  contract  for  extension.^  Prin- 
cipal and  sureties  signed  a  bond,  conditioned  that  the  principal 

'Farwell  v.  Meyer,  35  111.  40.  « State  v.  Beard,  11  Robinson  (La.) 

"Union    Bank  v.  Govan,   10  Sm.  &      243. 

Mar.  (Miss.)  333.  '  Smarr  v.  McMaster,  35  Mo.  349. 

3  Seawell  v.  Cohn,  2  Nevada,  303.  « Wheeler  v.  Washburn,  24  Vfc.  293; 

■*  Phillips  V.  Rounds,  33  Me.  357.  Hamsberger's  Exr.  v.  Geiger's  Admr. 

6  Board  of  Police  of  Clark  Co.  v.      3  Gratt.  (Va.)  144. 
Covington,  26  Miss.  470. 


SUEETY   OF    COLLECTOR   OF   TAXES.  437 

would  complete  a  house  witliin  a  certain  time.  Afterwards  an 
agreement  was  written  on  tlie  back  of  the  bond,  which  it  was  in- 
tended should  be  signed  by  all  the  parties,  and  which,  by  its 
terms,  extended  the  time  for  the  completion  of  the  building. 
One  of  the  sureties  did  not  sign  this  agreement.  Held,  the  con- 
tract for  extension  was  not  complete  nor  binding;  no  time  was 
given,  and  tlie  sureties  were  not  discharged.* 

§  324.  How  surety  of  collector  of  taxes  affected  by  exten- 
sion of  time — Other  cases. — The  rule  with  reference  to  the  dis- 
charge of  a  surety  by  extension  of  time,  has  been  variously  ap- 
plied by  the  courts  to  the  case  of  sureties  for  collectors  of  public 
money.  It  has  been  held  that  a  special  act  of  the  legislature 
giving  time  to  a  particular  tax  collector  to  collect  and  account 
for  taxes,  operates  the  release  of  his  sureties.^  The  condition  of 
a  collector's  bond  was  that  he  should  pay  over  to  the  state  the 
money  received  by  him  "  at  such  time  as  the  law  shall  direct." 
After  the  bond  was  made  the  legislature  appointed  a  more  distant 
day  for  the  payment  of  tlie  tax  by  the  collector  than  the  one  pro- 
vided by  law  when  the  bond  was  made.  Held,  the  sureties  were 
not  discharged,  because  the  bond  by  its  reasonable  construction 
held  them  liable  after  the  change,  and  besides,  the  state  was  under 
no  obligation  to  keep  the  law  the  same  as  it  was  when  the  sure- 
ties became  bound  and  might  change  it  at  its  pleasure  without 
discharging  the  sureties.^  Where,  after  a  bond  had  been  signed 
by  a  collector  of  taxes  and  his  sureties,  there  were  several  exten- 
sions, by  joint  resolutions  and  acts  of  the  general  assembly,  of 
the  time  in  which  collectors  should  make  their  settlements  with 
county  treasurers,  it  was  held  that  the  sureties  were  not  dis- 
charged. The  court  said  the  contract  of  tlie  sureties  had  not 
been  in  any  manner  changed.  Laws  requiring  that  settlements 
shall  be  made  at  stated  times  are  merely  directory  to  the  officers 
of  the  government,  and  form  no  part  of  the  contract  with  the 
sureties,  and  the  change  of  such  laws  in  no  way  affects  the  rights 
of  the  sureties.  Besides  "the  indulgence  granted  to  the  officer 
by  the  extension  of  time  in  this  case,  is  not  a  contract,  but  is  an 

'  Barber  v.  Burrows,  51  Gal.  404.  of  authority  in  the  county  commission- 

'^  Johnson    v.    Hacker,      8     Hi^isk.  ers  to  pass  it,  the  collector's  sureties 

(Tenn.)  388;  Davis  v.   The  People,  1  are  not  discharged  thereby.  Coman  v. 

Gilman  (111.)  409;    People  v.  McHat-  The  State,  4  Blackf.  (Ind.)  241. 

ton,  2  Gilman  (111.)  G38.    If  the  reso-  *  State  v.  Caiieton,  1  Gill  (Md.)  249. 

lution  extending  time  is  void  for  want 


43S  DISCIIATvGE    OF   SURETY    BY    GIVIKG    OF    TIME. 

ordinaiy  act  of  legislation  for  tlie  public  good,  with  no  considera- 
tion for  the  extension  moving  from  tlie  officer,  and  is  repealable 
at  the  will  of  the  general  assembly." '  Certain  special  funds  be- 
longing to  a  county  were  loaned  by  the  county  commissioners  in 
December,  1838,  to  an  individual  who  gave  therefor  his  not'e 
with  sureties,  due  in  one  year.  At  their  March  term,  1839,  the 
county  commissioners  directetl  an  order  to  be  entered  to  the  ef- 
fect that  the  loans  previously  made  should  be  extended  to  March, 
1841,  on  condition  that  the  borrowers  •  should  keep  the  county 
secure  in  the  payment  of  their  notes,  and  pay  the  interest  an- 
nually. Held,  this  was  not  an  extension  of  time  which  dis- 
charged the  sureties,  but  an  expression  of  the  sense  of  the  county 
commissioners  that  the  money,  instead  of  being  called  in  at  the 
end  of  the  year,  might  with  propriety  be  loaned  longer.^  A  party 
was  appointed  assignee  of  the  state  bank  to  wind  up  its  affairs 
(the  period  allowed  for  that  purpose  being  four  years),  and  gave 
bond  with  sureties  for  the  performance  of  his  duties  in  that  re- 
gard. A  part  of  such  duties  was  to  meet  with  others  each  year 
and  burn  all  notes  and  certificates  of  the  bank  which  had  been 
redeemed.  About  the  expiration  of  the  four  years  the  legislature 
extended  the  time  for  winding  up  the  affairs  of  the  bank  two 
years  more.  Held,  the  sureties  were  not  liable  for  anything 
which  occurred  after  the  first  four  years,  but  were  liable  for  de- 
faults of  the  principal  in  not  destroying  notes,  etc.,  which  oc- 
curred during  such  four  years.' 

§  325.  V/heu  surety  discharged  by  extension  of  time  after 
judgment. — If,  after  a  judgment  is  rendered  against  principal 
and  surety,  the  creditor,  by  binding  agreement  with  the  princi- 
pal, extends  the  time  of  payment,  it  is  generally  held  that  the 
surety  is  discharged,  the  same  as  if  such  time  had  been  given 
before  the  judg'.nent  was   rendered."     "  A   judgment  does   not 

'Commonwealth    v.     Holmes,     25  (La.)  299;  rilgrira  «.  Dykes, 24  Texas, 

Gratt.  (Va.)  771,  per  Bouldin,  J.    To  383;  Vankoughnet  v.  Mills,  5  Grant's 

same  effect,  see    Smith  v.   Common-  Ch.  R.G53;  contra,  see  Farmers' Bank 

wealth,  25  Gratt.  (Va.)   780;   Bennett  v.  Horsey,  1   Harrington   (Del.)  514. 

I'.  The  Auditor,  2  West  Va.  441.  Holding  the  contrary,  with  hesitation, 

=  Waters  r.  Simpson,  2  Gilman  (111.)  see,  also,  DufF  r.  Barrett,  15  Grant's 

570.  Ch.  E,  632;  DufF  v.  Barrett,  17  Grant's 

"Governor  v.   Lagow,   43  111.   134;  Ch.  R.  187.     See,  also,  on  this  subject, 

Governor  v.  Bowman,  44  111.  499.  Drake  v.  Smythe,  44  Iowa,  410. 

^Callihara   r.  Tanner,  3  Robinson 


EXTENSION    OF   TIME   AFTER   JUDGMENT.  439 

create,  add  to,  nor  detract  from  the  indebtedness  of  a  party;  it 
only  declares  it  to  exist,  fixes  tlie  amount,  and  secures  to  the 
suitor  the  means  of  enforcing  payment.  *  When  the  creditor 
obtains  a  judgment  against  the  principal  debtor  and  the  surety, 
both  are  to  be  sure  ecpially  and  absohitely  bound  for  the  debt; 
but  why  is  it  that  a  payment  of  the  judgment  by  the  principal 
debtor  releases  the  surety,  or  that  a  payment  of  it  by  the  surety 
subrogates  him  to  all  the  rights  of  the  judgment  creditor  against 
the  principal  debtor?  It  can  only  be  because  the  relation  of 
principal  and  surety  continues  to  subsist  between  them,  even  after 
judgment."  '  If  the  creditor  take  from  the  principal  a  confes- 
sion of  judgment,  and  grant  a  stay  of  execution  for  a  definite 
time,  and  such  stay  is  part  of  the  judgment,  or  there  is  a  binding 
agreement  that  such  stay  shall  be  given,  the  surety  is  generally 
held  to  be  discharged  thereby.*  Such  agreement  must,  in  order 
to  have  this  effect,  be  binding,^  and  for  a  definite  time.*  And  if 
the  time  for  wdiich  execution  is  stayed  does  not  exceed  that  in 
which  judgment  could  have  been  obtained  by  the  ordinary  course, 
it  has  been  held  there  is  not  such  a  giving  of  time  as  will  dis- 
charge the  surety.^  If,  by  virtue  of  a  statutory  provision,  the 
rejnedy  of  the  surety  against  his  principal  is  not  impeded  by  the 
stay  of  execution,  it  has  been  held  the  surety  is  not  discharged 
thereby."  By  the  terms  of  a  replevin  bond,  the  sureties  therein 
agreed  that  if  a  judgment  for  money  was  rendered  against  the 
the  principal,  it  might  also  be  rendered  against  them.  By  agree- 
ment with  the  principal,  judgment  was  had  against  him  and  the 
sureties,  and  by  the  terms  of  the  same,  judgment  execution  was 
stayed  one  year.  Held,  the  sureties  were  not  discharged,  on  the 
ground  that  the  court  had,  by  the  virtue  of  the  bond  and  the 
provisions  of  the  law,  jurisdiction  over  the  sureties,  and  they 

'  Gustine  v.  Union  Bank,  10  Robin-  *  Miller  v.  Porter,  5  Humph.  (Tenn.) 

son  (La.)  412,  per  Murphy,  J.  294. 

^Wingate  v.  Wilson,   53  Ind.  78;  ''Ferguson  v.  Childress,  9  Humph. 

Fordyce  v.  Ellis,  29  Cal.  96;  State  v.  (Tenn.)  382;    Fletcher  v.   Gamble,    3 

Hammond,  6  Gill&  Johns.  (Md.)  157;  Ala.  335;  Suydam  v.Vance,  2  McLean, 

Ward  V.   Johnson,  6  Munf.  (Va.)  6;  99;  Barker  r.  McClure,  2  Blackf.  (Ind.) 

Clippinger  v.  Creps,  2  Watts  (Pa.)  45;  14. 

Bank    of   Steubenville    v.    Leavitt,  5  ^Grimesr.Nolen,  3  Humph.  (Tenn.) 

Ohio,  208.  412;  Williams  v.  Wright,  9  Humph. 

8  Wayne  v.  Kirby,  2  Bailey  Law  (So.  (Tenn.)  493. 
Car.)  551;  Woolworth  v.  Brinker,  11 
Ohio  St.  593. 


440  DISCIIAKGE    OF    SUEETY    BY   GIVING    OF    TIME. 

were  bound  by  any  judgment  it  might  render  to  wliicli  tliej  did 
not  object.  The  court  said  this  was  not  like  giving  time  after  a 
judgment  liad  been  rendered,  because  here  the  giving  of  time 
was  part  of  the  judgment,  and  tlie  sureties  being  presumed  to  be 
in  court,  and  not  objecting,  remained  bound.^ 

§  326.  Miscellaneous  cases  holding  surety  discharged  by 
extension  of  time  after  judgment. — A  creditor,  by  directing  the 
sheriff  to  put  off  the  sale  of  property  of  the  principal,  taken 
in  execution,  to  a  day  after  the  return  day,  and  to  suffer  it  to  re- 
main in  possession  of  the  principal,  releases  the  sureties  from 
that,  and  any  subsequent  execution.^  If,  after  a  sale  of  real 
estate  by  order  of  the  orphan's  conrt,  the  guardian  of  one  of  the 
heirs  takes  a  judgment  from  the  administrator  who  made  the 
sale,  for  the  share  of  his  ward,  and  gives  a  stay  of  execution  for 
one  year,  the  snrety  of  the  administrator  is  released.^  "Where 
after  a  judgment  was  recovered  against  a  principal,  the  creditor 
entered  of  record  in  the  case  that  execution  was  stayed  for  a 
definite  time,  it  was  held  the  surety  was  discharged.*  The  de- 
fendant in  a  suit  in  which  judgment  had  been  recovered,  gave  a 
voluntary  bond  with  two  sureties,  which  provided  for  the  -paj- 
ment  of  the  judgment  in  cotton,  by  a  certain  date.  Afterwards 
the  defendant  sued  out  a  writ  of  error  to  the  Supreme  Court, 
giving  other  sureties.  By  consent  of  the  defendant,  the  judg- 
ment v/as  affirmed  in  the  Supreme  Court,  and  an  agreement  was 
made  between  the  defendant  and  the  creditor,  that  execution 
should  be  stayed  a  definite  time.  Held,  the  sureties  on  the  vol- 
untary bond  were  discharged.^  A  creditor  having  commenced 
suit  against  the  princij^al  and  held  him  to  bail  thereupon,  agreed 
to  waive  further  proceedings,  upon  the  principal  giving  him  a 
warrant  of  attorney  to  confess  judgment,  on  which  warrant  was  a 
memorandum  that  no  execution  should  issue  on  the  judgment 
for  three  years.  Held,  the  surety  was  discharged.^  The  princi- 
pal in  a  w'rit  of  eiTor  bond  agreed  with  the  adverse  party  that 

'  Herslilor  v.  Reynolds,  22  Iowa,  152.  ^  Sawyers  v.  Hicks,  6  Watts.  (Pa.) 

This  case  can  only  be  sustained  on  the  76. 

ground  that,  under  the  peculiar  cir-  ^  Smith  v.  Rice,  27  Mo.  505. 

cumstances,  the  sureties  must  be  pre-  ^  Comegys  v.  Booth,  3  Stew.  (Ala. ) 

sumed  to  have  consented  to  the  judg-  14. 

ment.  «Nisbet  v.  Smith,   2    Brown's   Ch. 

*  Bullitt's    Exrs.    v.    Winstons,     1  R.  579. 
Munf.  (Va.)  2G9. 


GIVING  TIME  BY  PAROL  WHEEE  SUEETY  BOUND  BY  SPECIALTY.    441 

the  jiidomeiit  sliould  be  affirmed,  tliat  he  would  deliver  indorsed 
bills  for  the  amount  of  the  debt,  payable  by  instalments,  and  that 
no  execution  should  be  levied,  except  in  the  event  of  the  non- 
payment of  the  bills,  and  it  was  held  that  the  sureties  in  the 
bond  were  discharged/  A  became  surety  of  tlie  defendants  in 
an  execution  for  the  delivery  to  the  sheriff  at  a  day  certain  of 
certain  goods  levied  on.  After  that  day,  the  original  award  on 
which  the  execution  issued,  was,  by  consent  of  the  parties  in  the 
case,  referred  back  to  the  arbitrators  on  exceptions  filed,  and  the 
award  was  confirmed  by  agreement,  and  three  months  stay  of  ex- 
ecution Avas  given.  Held,  the  execution  was  discharged,  and  A 
released  by  the  extension  of  time.^ 

§  327.  Whether  surety  on  specialty  discharged  by  parol  agree- 
ment for  extension. — With  reference  to  the  effect  of  a  parol 
agreement  for  extension  of  time  on  the  liability  of  a  surety  who 
is  bound  by  a  sealed  obligation,  the  decisions  vary  greatly.  It 
has  been  held  that  a  parol  agreement  to  give  time  under  such 
circumstances  is  not  binding,  because  a  specialty  cannot  be  dis- 
charged, controlled,  or  in  any  way  affected  by  a  contract  of  less 
dignity  than  itself?  A  court  which  held  the  above,  also  held  that 
where,  in  such  a  case,  acts  had  been  done  under  the  parol  agree- 
ment, and  in  pursuance  of  it,  the  surety  was  thereby  discharged, 
because,  the  parol  agreement  being  executed,  it  was  not  the 
agreement  alone,  but  the  things  done  under  it,  which  Avas  relied 
upon.*  Other  courts  hold  that  the  sealed  instrument  by  which 
the  surety  is  bound,  may  be  discharged  by  an  extension  of 
the  time  of  payment,  by  a  writing  without  seal,  or  by  a  verbal 
agreement.^  Still  other  courts,  while  admitting  that  a  surety 
who  is  bound  by  a  specialty  mN,y,  in  equity,  be  discharged  by  a 
parol  agreement  for  extension,  have  held  that  such  parol  agree- 
ment cannot  be  set  up  as  a  defense  at  law.*     The  strong  tendency 

1  Comegys  v.  Cox,   1   Stew.   (Ala.)  Walker,  31  111.  422. 

262.  ^Leavitt  v.  Savage,  16  Me.  72.    See, 

-  Blaine    v.     Hubbard,    4    Pa.     Gt.  on  this  subject,  Gott  v.  State,  4A  Md. 

183.  319. 

3  Carr  ?;.  Howard,  8  Blackf.  (Ind.)  « Steptoe's  Admr.  v.  Harvey's  Exr. 

190;  Tate  r.  Wymond,  7  Blackf.  (Ind.)  7  Leigh  (Va.)  501;  Devers  v.  Ross,  10 

240.  Gratt.    (Va.)   252;  Davey  v.  Prender- 

*  Dickerson    v.     Commissioners    of  grass,  5  Barn.  &  Aid.  187j  Wiltmer  v. 

Ripley  Co.  6  Ind.  128.    On  same  sub-  Ellison,  72  111.  301. 
ject  and  to  same  effect,  see  White  v. 


412  DISCnAKGE    OF    SURETY   BY   GIVING    OF   TIME, 

of  tlie  later  decisions  if,  liowever,  as  elsewhere  shown,  to  permit 
the  surety  to  make  and  rely  upon,  at  law,  any  defense  which  he 
can  sustain  in  equity,  except  in  special  cases  where  law  cannot 
aiford  adequate  relief. 

§  328.  "When  surety  discharged  by  extension  of  time  if  fact 
of  suretyship  does  not  appear  from  the  obligation. — Where  tlie 
fact  of  suretyship  does  not  appear  from  the  obligation,  but  the 
creditor,  when  he  grants  an  extension  of  time  to  the  principal, 
knows  of  such  suretyship,  the  surety  is  discharged,  the  same  as 
if  the  fact  of  suretyship  appeared  from  the  obligation.'  But  if 
the  fact  of  suretyship  does  not  appear  from  the  obligation,  and 
the  creditor  does  not  know  of  it  when  he  grants  the  extension, 
the  surety  is  not  thereby  discharged.^  By  a  composition  deed, 
certain  creditors  extended  tlie  time  of  payment  to  the  principal 
for  two  years  absolutely,  and  longer  if  he  complied  with  certain 
terms.  The  creditor  was  the  indorsee  of  a  bill  of  exchange  ac- 
cepted by^A  for  the  accommodation  of  the  principal,  but  this  fact 
was  not  knowm  to  the  creditor  when  he  made  the  composition 
deed.  lie  did,  however,  know  that  some  of  the  parties  on  some 
of  the  paper  of  the  principal  were  sureties,  but  he  did  not  know 
which  were  such  sureties.  Held,  A  was  discharged  by  the  giving 
of  time.  The  court  said  :  "  We  think  that  if  the  effect  of  the 
deed  were  to  alter  the  position  of  the  parties  who  should  turn  out 
to  be  sureties,  it  was  wilfully  done,  and  as  inequitable  as  if  they 
had  express  notice  who  those  parties  were." ' 

§  329.  Giving  time  to  principal  does  not  discharge  surety  if 
remedies  against  surety  reserved. — If  the  Creditor  extends  the 
time  of  j^ayment  to  the  principal,  but  at  the  same  time  expressly 
reserves  all  remedies  against  the  surety,  the  surety  is  not  dis- 
charged by  such  extension.'*  With  reference  to  this  matter  it  has 
been  said  :     "  The  giving  of  time  to  the  principal  debtor  with  a 

'  Grecnoush  v.  McClelland,    2  Ellis  *  Bailey  v.  Edwards,  4  Best  &  Smith, 

&  Ellis,  424;  F.  &  M.  Bank  of  Lexing-  761,  per  Blackburn,  J. 

ton  V.  Cosby,  4  J.  J.  Marsh  (Ky.)  366;  ^  Clagett  v.  Salmon,  5  Gill  &  Johns. 

Pooley  V.  Harradine,  7  Ellis  &  Black.  (Md.)  314;  Wyke  v.  Rogers,  1  DeGex, 

431.  Macn.  &   Gor.  408;  Hagey  ?;.  Hill,  75 

*  Howell  V.  Lawrencevillc  Mfg.  Co.  Pa.  St.   108;  Boaler  v.  Mayor,  19  J. 

31  Ga.  663;  Nichols «;.  Parsons,  G  New  Scott  (N.  S.)  76;  Price  v.  Barker,  4  El- 

Hamp.30;  Agnewv.  Men-itt,  10  Minn.  lis  &  Black.  760;  Webb  v.   Hewitt,  3 

.  308;  Kaighn  v.  Fuller,  1  McCarter  (N.  Kay  &  Johns.  438;  Owen  v.   Homan, 

J.)  419;  Roberts  v.  Bane,  32  Texas,  13  Beavan,  196;     contra,    Gustine  v. 

385.  Union  Bank,  10  Robinson  (La.)  412. 


EESEEVATION    OF    REMEDIES    AGAINST    SUEETT.  443 

reservation  of  tlie  remedies,  has  in  many  cases  the  appearance  of 
absurdity,  because,  when  distinctly  understood,  it  seems  to  be  al- 
most a  flat  contradiction  in  terms.  Such  a  reservation  of  reme- 
dies, in  order  to  hold  the  surety,  must  amount  to  this:  that  the 
creditor  agrees  to  give  time  to  the  debtor,  and  yet  they  both  agree 
that  the  surety  may  at  any  time  force  the  creditor  to  proceed 
against  the  principal  by  a  bill  quia  timet^  or  by  paying  the  whole 
debt,  have  an  assignment  of  all  the  securities,  and  proceed  imme- 
diately himself  against  the  principal  debtor,  or  in  any  mode  au- 
thorized by  the  assigned  securities.  Such  an  agreement,  reserving 
the  remedies,  might  not  in  many  cases  be  of  the  least  benefit  to 
the  principal  debtor,  since  it  leaves  him  entirely  at  the  mercy  of 
his  surety;  yet  if  the  j^arties  do  so  expressly  contract,  the  surety 
can  have  no  cause  to  complain  that  the  implied  contract  has  been 
altered  or  im])aired  in  any  way  to  his  prejudice,  and  therefore,  he 
cannot  be  discharged." '  It  has  also  been  said  that  "  the  debtor 
cannot  complain  if  the  instant  afterwards  the  surety  enforces  those 
remedies  against  liim,  and  his  consent  that  the  creditor  shall  have 
recourse  against  the  surety  is  imjDliedly  a  consent  that  the  surety 
shall  have  recourse  against  him.  ^^  It  is  very  obvious  that  a 
jDrincipal  debtor  may  gain  little  or  nothing  by  such  a  composition 
as  this  with  his  creditor,  inasmuch  as  he  is  left  liable  to  the  like 
proceedings  against  him  by  his  sureties,  which  his  creditor  might 
liave  instituted  if  no  composition  had  been  made.  But  if  he 
pleases  to  subject  himself  to  that  liability  by  voluntarily  execu- 
ting an  agreement  which  has  that  effect,  there  is  no  legal  reason 
why  he  should  not  be  held  to  that  agreement.'"'  Again,  it  has 
been  said,  that  the  reservation  of  remedies  against  the  surety 
"  rebuts  the  presumption  that  the  surety  was  meant  to  be  dis- 
charged, which  is  one  of  the  reasons  why  the  surety  is  ordinarily 
exonerated  by  such  a  transaction;  and  secondly,  that  it  prevents 
the  rights  of  the  surety  against  the  debtor  being  impaired,  the 
injury  to  such  rights  being  the  other  reason;  for  the  debtor  can- 
not complain  if  the  instant  afterv/ards  the  surety  enforces  those 
rights  against  him,  and  his  consent  that  the  creditor  shall 
have  recourse  against  the  surety  is  impliedly  a  consent 
that  the  surety  shall   have   recourse  against  him."^     In   order 

'Salmon  v.  Clagett,  3  Bland's  Ch.  -Sohier  v.  Loring,  6  Cusli.  537,  per 

R.  (MJ.  )  125,  per  Bland,  0.  Metcalf,  J. 

3  Kearsley  v.  Cole,  16  Mees.  &  Wels.  128,  per  Parke,  B. 


444:  DISCHARGE   OF    SUKETY    BY    GIVING    OF   TIME. 

that  the  extension  of  time  in  such  a  case  shall  not  discharge 
the  surety,  the  remedies  against  him  must  be  distinctly  and  ex- 
plicitly reserved.  "  A  sti}3ulation  of  that  kind  is,  in  many  cases, 
so  very  absurd  that  it  must  be  seen  plainly."  ^  A  creditor  agreed 
to  give  time  to  the  principal,  but  at  the  same  time  reserved  the 
right  to  sue  when  requested  by  the  sureties,  and  it  was  held  the 
sureties  were  not  discharged.'  When  at  the  time  an  agreement 
for  extension  between  principal  and  creditor  was  made,  it  was 
also  agreed  between  them  that  the  surety  should  not  be  dis- 
charged, but  should  have  the  right  at  any  time  to  pay  the  debt, 
and  proceed  against  the  principal,  it  was  held  the  surety  was  not 
discharged,'  After  judgment  had  been  recovered  against  princi- 
pal and  sureties,  the  principal  and  the  creditor  made  an  agree- 
ment for  extension  of  time,  and  at  the  same  time  stipulated  that 
the  lien  of  the  judgment  should  remain  unimpaired  against  all 
the  parties  thereto:  Held,  that  under  this  agreement  it  was  the 
duty  of  the  principal  to  procure  the  consent  of  the  surety  to  the 
extension;  and  if  he  did  not,  the  consideration  for  the  agreement 
failed,  the  creditor  was  not  bound  by  it,  and  the  surety  was  not 
discharged.*  Where,  by  a  vote  of  creditors  under  the  bankrupt 
act,  a  composition  less  than  the  full  amount  is  accepted  and  time 
given,  the  fact  that  a  deed  releasing  the  principal  is  afterwards 
executed,  in  which  the  remedies  against  the  sureties  are  reserved, 
will  not  prevent  the  release  of  the  sureties.  The  time  having 
been  once  given  by  the  vote,  the  sureties  were  then  discharged, 
and  could  not  be  rendered  liable  by  subsequent  matter  without 
their  consent.^  Where  a  creditor  agreed  with  the  principal  to 
extend  the  time  of  payment  for  six  months,  and  in  the  same 
agreement  the  principal  reserved  the  right  to  pay  at  any  time 
within  the  six  months,  it  was  held  the  surety  was  discharged.' 

'  Boultbee  v.  Stubbs,  18  Vesey,  20,  ^  Wilson  v.  Lloyd,  Law  Rep.  16  Eq. 

per  Lord  Eldoo,  C.  Cas.  60. 

2  Rucker  v.  Robinson,  38  Mo.  154.  « Wright  v.  Bartlett,  43  New  Hamp. 

3  Morse  v.  Huntington,  40  Vt.  488.  548. 
*Hunt».  Knox,  34  Miss.  655. 


CHAPTER  Xy. 


OF    THE    DISCHARGE    OF    THE    SURETY    OR    GUARANTOR    BY 
ALTERATION   OF    THE    CONTRACT. 


Section, 
by  alteration 
General  Ob- 


Surety  discharged 
of  the  contract, 
servations         ....  330 

Surety  discharged  by  changing 
date  of  note  or  adding  inter- 
est        .  .  .  .        .  331 

How  surety  and  principal  affected 
by  addition  of  new  party  to  a 
note         .....  33'2 

Instances  of  cases  in  which  alter- 
ation of  note  will  and  will  not 
discharge  surety        .        .        .  333 

Surety  not  discharged  if  after 
alteration  is  made  he  ratifies  it  334 

When  surety  on  bond  discharged 
if  it  is  altered         .  .        .  335 

When  surety  on  bond  not  dis- 
charged by  its  alteration         .  336 

When  surety  discharged  if  credi- 
tor advance  to  principal  greater 
or  less  amount  than  that  for 
which    surety    becomes    liable  337 

Surety  discharged  if  variation  of 
contract  is  for  his  benefit        .  338 

When  surety  on  lease  discharged 
by  alteration  of  conti-act         .  339 

When  judgment  against  piinci- 


Section. 
pal  does   not  bar  suit  against 
surety        .      -.        .        ,        .  340 

When  surety  not  discharged  be- 
cause compensation  of  princi- 
pal changed      ....  341 

Surety  for  conduct  of  principal 
discharged  if  his  duties  are 
changed  .  ...  342 

When  surety  discharged  if  re- 
sponsibility of  the  principal 
varied 343 

Discharge  of  surety  of  cashier, 
of  surety  on  distillers'  bond,  and 
of  surety  when  obligees  subse- 
quently   become    incorporated  344 

Dealing  by  creditor  ■with  princi- 
pal, which  amounts  to  a  de- 
parture from  the  contract,  dis- 
chai'ges  surety         .         .         .  345 

Surety  for  alimony  discharged  if 
alimony  changed  by  court. 
When  changing  part  of  contract 
does  not  release  surety      .        .  346 

Miscellaneous  cases,  holding 
surety  discharged  by  altera- 
tion of  contract        .        .        .  347 


§  330.  Surety  discharged  by  alteration  of  the  contract — Gen- 
eral observations. — As  has  already  been  seen,  the  surety  is  dis- 
charged if  the  time  of  payment  is,  by  a  binding  agreement  ex- 
tended for  a  definite  period  without  his  consent ;  the  chief  reason 
for  such  discharge  being  that  his  contract  is  in  such  case  altered. 
In  this  chapter,  alterations  of  the  contract  in  other  regards  than 
by  an  extension  of  time,  will  be  treated  of.  It  is  a  general  rule 
that  any  agreement  between  the  creditor  and  principal,  which 

(445) 


440        EISCIIARGE   OF    SURETY    BY    ALTERATION    OF    CONTRACT. 

varies  essentially  the  terms  of  the  contract  by  which  the  surety 
is  bound,  without  the  consent  of  the  surety,  will  release  him  from 
responsibility.'  "The  contract  by  which  a  surety  becomes  bound 
is  voluntary  on  his  part,  without  profit  or  advantage,  and  without 
having  in  view  the  prospect  of  gain.  It  is  an  act  of  benevolence 
to  the  obligor,  and  of  convenience  to  the  obligee,  and  of  emphatic 
use  to  both.  The  obligations  of  social  duty  require  therefore  that 
he  should  be  dealt  with  in  fairness,  and  in  a  spirit  of  the  utmost 
good  faith.  The  obligor  and  the  obligee  are  bound  to  know  that  if 
they  find  it  convenient  to  change  or  vary  tlie  terms  of  the  original 
contract,  they  must  seek  the  assent  of  the  surety,  because  it  is  his 
contract  as  well  as  theirs,  and  if  they  will  not  do  so,  they  take  upon 
themselves  the  hazard,  and  thus  loosen  the  bonds  of  the  surety."' 
§  331.  Surety  discharged  by  changing  date  of  note  or  adding 
interest. — xVltering  the  date  of  a  note  after  it  has  been  signed  by 
a  surety,  discharges  him,  if  such  alteration  is  made  without  his 
consent.^  If  the  note  is  dated,  but  the  amount  is  blank  when  the 
surety  signs,  he  is  discharged  by  an  alteration  of  the  date.*  The 
date  of  a  note  was  altered  from  1836  to  1838,  by  the  holder,  in 
the  presence  of  the  surety,  but  without  his  consent.  The  origi- 
nal date  of  the  note  should  have  been  1838,  and  the  alteration 
was  made  after  the  note  would  have  been  due  with  either  date. 
Held,  the  surety  was  discharged,  because  the  application  of  the 
statute  of  limitations  to  the  note  was  changed,  and  the  surety 
was  put  to  the  trouble  and  expense  of  showing  the  truth.*  If,  at 
the  time  the  surety  signs  a  note,  it  does  not  draw  interest,  and  the 
principal  afterwards,  without  the  consent  of  the  surety,  interlines 
the  words  "  with  interest  from  date,"  the  surety  is  discharged." 
So  the  addition  to  a  note,  after  it  is  signed  by  a  surety,  of  a  clause 
making  tlie  interest  payable  annually  or  semi-annually,  without 
the  surety's  consent,  and  with  the  knowledge  of  payee  or  party 
taking  the  note,  discharges  the  surety.''     And  where,  in  such  a 

'  United  States  v.  Tillotson,  1  Paine,  (Ky.)  191. 

305;  Eneas  v.  Hoops,  10  Jones  &  Spen.  ^  Miller  r.  Gilleland,  19  Pa.  St.  119. 

(N.  Y.)  517.  6  Kountz  v.  Hart,  17  Ind.  329.  To  sim- 

^  Hobbs  V.  Piue,  4  Pa.  St.  348,  per  ilar  effect,  see  Hart  v.  Clouser,  30  Ind. 

Coulter,  J.  Holding  that  altering  the  210;  Glover  v.  Robbins,  49  Ala.  219; 

rate  of  interest  discharges  the  surety,  Locknane  v.  Emmerson,  11  Bush  (Ky.) 

Harsh  v.  Klepper,  28  Ohio  St.  200.  69. 

» Britton  v.  Dierker,  46  Mo.  591.  '  Dewey  v.  Reed,  40  Barb.  (N.Y.)  16; 

*  Bank  of  Com.  v.  McChord,  4  Dana 


ADDITION    OF    NEW    TARTY    TO    NOTP].  447 

case,  tlie  surety  first  signed  the  note  in  pencil,  witli  a  promise  to 
"  ink  over  "  liis  signature  afterwards,  and  tlie  note  was  altered  by 
making  the  interest  payable  annually,  and  tlie  surety  afterwards, 
without  knowing  of  the  alteration,  "  inked  over  "  his  signature, 
it  was  held  he  was  discharged.^  Where  it  was  agreed  between 
the  23rincipal  and  creditor  that  the  note  should  bear  interest,  but 
no  such  provision  was  contained  in  the  note  when  it  was  signed 
by  the  surety,  and  it  was  afterwards,  without  the  consent  of  the 
surety,  changed  by  the  principal  and  creditor  so  as  to  conform  to 
the  agreement  between  them,  it  was  held  the  surety  was  dis- 
charged.^  The  effect  of  a  material  alteration  of  a  note  as  aforesaid, 
is  to  entirely  destroy  the  surety's  liability  thereon.  The  alteration 
cannot  be  erased  and  the  surety  held  on  the  note  as  it  originall}'- 
was.  The  identity  of  the  instrument  has  been  destroyed,  and  on 
grounds  of  public  policy  the  liability  of  the  surety  is  entirely 
gone.^  Where  a  surety  signed  a  blank  note,  which  the  principal 
afterwards  filled  up  so  as  to  bear  usurious  interest,  it  was  held, 
the  surety  was  not  thereby  discharged,  because  the  note,  notwith- 
standing its  form,  woidd  only  bear  interest  at  the  legal  rate,* 
The  maker  of  a  note  wrote  on  its  back:  "  I  hereby  agree  to  pay 
ten  per  cent,  interest  on  this  note  hereafter,"  and  signed  it. 
Held,  this  was  not  an  alteration  of  the  note,  but  was  a  new 
contract  to  pay  greater  interest,  which  no  more  changed  the  note 
than  if  written  on  a  separate  piece  of  j)aper,  and  the  surety  ^vas 
not  thereby  discharged.^ 

§  332.  How  surety  and  principal  affected  by  addition  of  ne^w 
party  to  a  note. — If,  after  a  note  has  been  executed  by  a  surety 
and  delivered,  a  new  surety  signs  the  note,  this  is  a  material 
alteration,  which  discharges  the  surety,  notwithstanding  the  fact 
that  it  is  a  benefit  to  him."  The  same  thing  was  held,  where 
after  a  note  had  been  signed  by  a  surety,  the  principal,  without 
the  consent  of  such  surety,  procured  another  surety  to  sign  it, 
and  afterwards  delivered  it  to  the  payee,  who  then  had  knowledge 

Marsh  v.  Griffin,  42  Iowa,  403;  Nefi  r,  Emmerson,  11  Bush  (Ky.)  69;  Glover 

Hornor,  63  Pa.  St.  327.  v.  Robbms,  49  Ala.  219. 

'  Boatt  V.  Brown,  13  Ohio  St.  364.  •»  Selser  v.  Brock,  3  Ohio  St.  302. 

'  Fulmer  v.  Seitz,  68  Pa.  St.  237.  .  niufi  v.  Cole,  45  Ind.  300. 

^Neff  r.  Horner,   68    Pa.   St.  827;  «  Bank  of  Limestone  ?>.  Penick,  2  T. 

Dewey  v.  Reed,  40  Barb.  (N.  Y.)  16;  B.  Mon.  (Ky.)  98;  Gardner  v.  Walsh, 

Fulmer  v.  Seitz,  68  Pa.  St.  237;  Marsh  5  Ellis  &  Black.  83;  Bank  of  Lime- 

V.  Griffin,  42  Iowa,  403;  Locknane  v.  stone  v.  Penick,  5  T.  B.  Mon.  (Ky.)  25. 


4-18        DISCIIAKGE   OF    SURETY   BY    ALTERATION   OF    COXTKACT. 

of  tlie  facts.^  xVdding  to  a  note  tlie  name  of  an  additional  surety, 
witli  the  assent  of  the  j^ayee,  and  of  the  personal  representative 
of  the  original  deceased  surety,  with  the  agreement  that  the 
estate  shall  not  be  tliereby  released,  is  not  an  alteration  which 
discharges  the  surety.^  Where  a  note,  signed  by  principal  and 
surety,  was,  by  its  terms,  payable  at  a  bank,  and  it  was  expected 
that  it  would  be  discounted  by  the  bank,  but  the  bank  would  not 
discount  it  unless  it  was  also  signed  by  the  holder,  who,  there- 
upon signed  it  on  its  face,  it  was  held  this  did  not  discharge  the 
surety,  as  it  was  the  same  as  if  the  creditor  had  indorsed  the 
note.^  But  when  a  note,  after  it  had  been  delivered,  was  signed 
by  a  stranger  as  joint  and  several  maker,  it  was  held  to  be  such 
an  alteration  as  discharged  the  surety/  If  a  surety  sign  a  note 
after  it  has  been  executed  and  delivered  by  the  principal,  this,  it 
has  been  held,  is  not  such  an  alteration  of  the  note  as  will  dis- 
charge the  principal.  The  contract  of  a  surety  need  not  be  con- 
temporaneous with  that  of  the  principal.  The  liability  of  the 
principal  is  not  increased  or  diminished  by  the  addition  of  a 
surety.  The  principal  is  liable  to  pay  the  whole  debt  without 
contribution,  while,  if  additional  sureties  are  added,  one  might 
become  insolvent  and  contribution  between  them  and  the  original 
surety  be  complicated.* 

§  333.  Instances  of  cases  in  ■which  alteration  of  note  •will 
and  will  not  discharge  surety. — The  alteration  of  a  note  at  the 
time  of  its  delivery,  by  adding  the  words  "payable  at  53  Lake 
street,"  is  material,  and  if  done  without  the  assent  of,  the  guar- 
antors, discharges  them.*  The  addition  to  a  note  of  a  clause, 
making  it  payable  in  gold,  when  gold  is  of  greater  value  than 
legal  tender  money,  in  which  the  note  might  be  paid,  discharges 
the  surety.'^  Adding"  to  a  non-negotiable  note,  the  words  "  or  or- 
der," thereby  making  it  negotiable,  is  a  material  alteration,  which 
discharges  the  surety.*     Where  the  holder  of  a  note  struck  out 

1  Hall  V.  McHenry,  19  Iowa,  521.  In  ^  Bowser  v.  Rendell,  31  Ind.  128. 

Keith  V.  Goodwin,  31  Vt.  268,  it  was  *  Willace  v.  Jewell,  21  Ohio  St.  163. 

held  that  if  a  surety  entrusts  a  note  ^  Miller  v.  Finley,  26  Mich.  249.    To 

signed  by  him  to   the   principal,    he  similar  effect,    see  Stone  p.  White,  8 

thereby  gives  the  principal  authority  Gray,  589.     On  same  subject,  see  Pul- 

to  get  additional  sureties  till  the  note  liam  v.  Withers,  8  Dana  (Ky.)  98. 
is  fairly  launched  on  the  market,  and  °  Pahlman  v.  Taylor,  75  111.  629. 

that  in  such  case  the  signing  of  a  new  '  Bogarth  v.   Breedlove,   39  Texas, 

surety  does  not  discharge  the  first  one.  561;  Hanson  ik  Crawley,  41  Ga.  303. 

*  Voiles  V.  Green,  43  Ind.  374.  "Haines  v.  Dennett,  11  New  H.  180. 


ALTERATION    OF    NOTE.  44:9 

the  name  of  one  of  the  indorsers,  it  was  held  that  it  operated  as 
a  discharge  of  a  subsequent  indorser,  for  such  indorser,  if  he  had 
paid  the  note,  would,  if  no  erasure  had  been  made,  have  had  a 
right  to  recover  from  the  indorser  whose  name  had  been  erased.^ 
A  note  was  guarantied  by  the  payee  in  the  following  words:  "  I 
guaranty  the  collection  of  the  within  note."  The  holder  tore 
off  the  words  "  the  collection  of  the,"  leaving  the  guaranty  to 
read  "  I  guarantee  the  within  note."  Held,  the  guarantor  was 
discharged.''  After  principal  and  surety  had  signed  a  note,  and 
before  its  delivery,  another  party,  without  the  consent  of  the 
surety,  signed  his  name  under  that  of  the  surety.  After  the  de- 
livery of  the  note,  the  holder  cut  off  the  name  of  the  last  signer. 
Held,  this  was  a  spoliation  of  the  instrument  which  discharged 
the  surety.^  Principal  and  surety  signed  a  note  for  $3,000,  which 
the  principal  presented  for  discount  to  the  payee,  who  refused  to 
discount  it  for  that  sum,  but  wrote  across  its  face  as  follows: 
"  $2,000.  This  note  was  discounted  for  $2,000,  which  amount  is 
due  upon  it."  Held,  the  surety  was  discharged.  The  note  had 
no  validity  for  any  amount,  until  it  was  delivered  to  the  payee, 
and  when  so  delivered  it  was  a  note  for  $2,000,  and  the  surety 
had  not  agreed  to  be  bound  by  any  such  note.^  If  the  suretv 
signs  a  note  in  which  the  amount,*  or  time  of  payment,'  is  left 
blank,  and  entrusts  it  to  the  principal,  he  is  bound  to  a  hona  fide 
holder  of  the  note,  without  notice,  for  such  amount  and  time  as 
the  principal  may  insert  in  the  blanks.  Where  the  facts  were 
such  as  to  justify  the  belief  that  the  principal  was  the  agent  of 
the  surety,  for  the  purpose  of  altering  a  note  from  a  larger  to  a 
smaller  sum,  it  was  held  tlie  surety  was  not  discharged  by  such 
alteration.'     Where  a  surety  signs  a  note,  complete  in  every  re- 

'  Curry  t?.   The  Bank  of  Mobile,   8  St.  351.    To  similar  effect,  see  Patto:i 

Port.  (Ala.)  360.  v.  Shanklin,  14  B.  Mon.  (Ky.)  13. 

■^Newlan  r.  Harrington,  24  111.  206.  ^  Johns  v.   Harrison,   20   Ind.   317; 

3  Hall  V.  McHenry,  19  Iowa,  521.  Waldron  v.  Young,  9  Heisk.  (Tenn.) 

■*  Portage  Co.  Branch  Bank  t\  Lane,  8  777.     On  this  subject,  when  the  date 

Ohio  St.  405;     contra,  M.  &  M.  Bank  is  bltyik,  see  Emmons  v.   Meeker,    55 

V.  Evans,  9   West  Va.  373.     Holding  Ind.  321. 

surety  discharged  when  holder  of  note  '  Ogle  v.  Graham,  2  Pen.  &  Watts 

gives  it  up  to  principal,  erasing  name  (Pa.)  132.     Holding  the  surety  not  lia- 

of  surety,  and  taking  new  note  for  the  ble  when  a  blank  in  a  bond  is  filled  for 

amount  from  principal,  see  Rhodes  v.  a  larger  sum  than  he  stipulated  to  be- 

Hart,  51  Ga.  .320.  come  liable  for,  see  Hastings  v.  Clen- 

*  Simpson's  Exrs.  v.  Bovard,  74  Pa.  daniel,  2  Del.  Ch.  R.  165. 
29 


450        DISCHARGE    OF    SURETY    BY    ALTERATION    OF    CONTRACT. 

spect,  and  permits  tlie  principal  to  take  it  to  a  bank  for  discount, 
and  the  principal  alters  it  to  a  larger  amount,  the  surety  is  dis- 
charfjed.  In  sucli  a  case  it  was  said  that:  "  The  sureties  assume 
a  certain  definite  obligation,  the  extent  of  which  is  clearly  and 
fully  stated  in  the  writing  they  sign.  To  that  extent  they  give 
confidence  and  credit  to  the  principal,  but  no  farther."  The  note 
naturally  passes  into  the  hands  of  the  principal.  "  The  party 
receiving  the  note  gives  the  confidence  and  trust  to  the  party 
from  whom  he  receives  it.  *  The  surety  may  safely  stipulate 
as  such  for  a  certain  stated  amount,  and  limit  his  liability  to  that 
sum.  He  does  so  when  he  puts  his  name  to  an  instrument 
wholly  filled  up."  It  is  otherwise  where  he  signs  a  blank  note.^ 
AVhere  a  note  with  sureties  is  surrendered,  and  a  new  note  hav- 
ing the  same  names  is  taken  in  extension  by  reason  of  represen- 
tations that  the  signatures  aregenuine,  the  holder  may,  on  dis- 
covering that  the  signatures  of  the  sureties  are  forged,  repudiate 
the  new  contract,  and  hold  the  sureties  on  the  old  note.^  Two 
sureties  signed  a  note,  and  afterwards,  without  their  consent,  the 
name  of  a  surety  who  had  signed  before  them,  was  stricken  out. 
The  payee,  when  he  took  the  note,  inquired  why  the  name  had 
been  erased,  and  was  told  by  the  principal  that  it  had  been  done 
by  consent.  Held,  the  two  sureties  were  discharged.  The  erasure 
appearing  on  the  face  of  the  paper  was  suflScient  to  put  the  payee 
upon  inquiry,  and  charge  him  with  knowledge  of  the  facts.^ 

§  334.  Surety  not  discharged  if  after  alteration  is  made  he 
ratifies  it. — If,  after  an  alteration  has  been  made  in  a  note, 
which  would  operate  the  discliarge  of  the  surety,  lie  assents  to 
such  alteration,  he  will  remain-  bound  without  any  new  considera- 
tion. "  If  the  alterations  had  been  made  with  his  knowledge  and 
consent,  it  is  very  clear  that  the  note  would  not  have  been  void. 

*  ISTor  is  the  rule  dififerent  where  the  assent  is  subsequently 
given."  *  After  a  note  which  had  been  altered  came  due,  the 
surety  nrged  the  holder  to  bring  suit  on  it,  and  suit  was  insti- 
tuted against  both  principal  and  surety,  and  the  surety  furnished 
bonds  for  an  attachment,  iti  aid  against  the  property  of  the  prin- 
cipal.    The   surety  then  admitted  that  he  would  have   to   pay 

'  Agawam  Bank  v.  Sears,  4   Gray,  *  Pelton  v.   Prescott,  13  Iowa,  567. 

95,  per  Dewey,  J.  Holding;  that  if  guarantor  consents  to 

■■^  Kincaid  v.  Yates,  63  Mo.  45.  alteration,  he  cannot  complain  of  it, 

'McCramer  v.  Thompson,  21   Iowa,  see  Knosbel  v.  Kircher,  33  111.  308. 

244. 


SURETY    ON    BOND    DISCHARGED    IF    IT   IS    ALTERED.  451 

whatever  sum  was  not  made  out  of  tlie  principal,  and  the  words 
added  to  the  note  were  erased  at  his  request.  Hel(^,  the  surety 
had  ratified,  the  alteration,  and  could  not  complain  of  it.'  Cer- 
tain sureties  were  the  solicitors  for  their  principal  in  making  the 
original  contract,  and  knew  of  all  the  subsequent  transactions  by 
which  the  contract  signed  by  them  as  sureties  was  varied,  and 
acted  as  solicitors  for  some  of  the  parties  in  the  subsequent  trans- 
actions, and  prepared  some  of  the  documents  required  by  sucli 
transactions.  Held,  they  were  not  discharged,  upon  the  ground 
that  from  the  circumstances,  they  must  be  presumed  to  have  con- 
sented to  whatever  changes  were  made.^  If  at  the  time  a  surety 
does  such  acts  as  would  amount  to  a  ratification  of  the  alteration, 
he  does  not  know  of  such  alteration,  he  will  not  be  jn'esumed  to 
have  ratified  the  same.^ 

§  335.  When  surety  on  bond  discharged  if  it  is  altered. — ^A 
material  alteration  of  a  bond  signed  by  a  surety,  has  the  same 
effect  to  discharge  him  as  in  the  case  of  a  note  or  instrument  not 
under  seal.  Thus,  where  the  obligee  in  a  replevin  bond  permit- 
ted one  of  the  principals  to  erase  his  name  from  it,  the  sureties 
were  held  to  be  discharged.*  If,  after  several  sureties  have  signed 
a  bond,  the  name  of  one  is  erased  with  the  consent  of  some  of 
the  sureties,  and  without  the  consent  of  others,  those  who  consent 
remain  bound  and  those  who  do  not  are  discharged."  Where, 
after  an  assessor's  bond  had  been  signed  by  himself  and  sureties, 
the  penalty  of  the  bond  was  erased  and  double  the  amount  in- 
serted without  the  consent  of  such  sureties,  and  the  bond  was 
afterwards  signed  by  other  sureties  and  approved,  it  was  held  the 
first  sureties  were  discharged. °  Where,  after  a  sheriff's  bond  hoxl 
been  signed  by  certain  sureties,  its  penalty  was  without  their  con- 
sent reduced,  and  it  was  then  signed  by  other  sureties,  it  was  held 
that  the  last  sureties  were  bound  and  the  first  were  discharged.' 
If  a  paper  intended  to  be  a  bond,  is  signed  in  blank  as  to  the 

1  Gardner  v.  Harback,  21  111.  129.  State  v.  Blair,  32  Ind.  313.     To  a  con- 

^  Woodcock  r.   Oxford  &  Worcester  trary  effect,  where  the  name  of  one 

R.  R.  Co.,  1  Drewry,  521.  surety  in  a  guardian's  bond  was  erased 

'Benedict  f.  Miner,  58  111.  19;  Boalt  and  another  substituted,  see   Hill  v. 

V.  Brown,  13  Ohio  St.  364.  Calvert,  1  Rich.  Eq.  (So.  Car.)  56. 

*  Martin  v.  Thomas,  24  How.  (U.  S.)  « People  v.  Kneeland,  31  Cal.  238, 
315,  ■"  People  v.  Brown,  2  Douglass  (Mich.) 

*  Smith  V.  United  States,  2  Wallace  9,  To  similar  effect,  see  Mitchell  v. 
(U.  S.)  219.    To  similar  effect,  see  The  Burton,  2  Head  (Tenn.)  613. 


■152        DISCHARGE   OF    SUKETY    PA'   ALTERATION   OF    CONTRACT. 

sum  by  a  person  as  surety,  and  tlie  surety  gives  no  one  any  au- 
tliority  to  fill  up  the  blank,  and  the  blank  is  afterwards  filled 
without  the  surety's  consent,  he  is  not  bound.^  If,  however,  a 
surety  signs  a  bond,  leaving  blank  the  penalty,  date  and  names  of 
the  obligees,  expecting  his  principal  will  properly  fill  the  blanks, 
and  he  does  properly  fill  them  and  deliver  the  bond,  the  surety 
is  liable.'' 

§  336.  When  surety  on  bond  not  discharged  by  its  altera- 
tion.— It  has  been  held  that  if  a  principal  gets  the  name  of  a 
surety  to  his  official  bond,  and  afterwards,  without  the  consent 
of  such  surety  he  gets  another  surety  to  sign  the  bond,  this  does 
not  discharge  the  first  surety.^  Where  A,  as  one  of  two  sureties, 
signed  a  bond  to  dissolve  an  attachment,  but  upon  his  answers 
as  to  his  estate  the  bond  was  not  approved,  and  he  went  away, 
and  afterwards  an  additional  surety  was  obtained  and  the  bond 
was  then  approved,  without  anything  further  being  said  to  A,  it 
was  held  he  was  liable  on  the  bond.*  After  a  bond  had' been 
signed  by  three  sureties,  the  names  of  two  were  accidentally  cut 
off*,  and  they  afterwards  signed  the  bond  without  attaching  any 
seal  to  their  names.  Held,  the  other  surety  was  not  dis- 
charged.' If  at  the  time  a  surety  signs  a  bond,  there  is  a  blank 
in  the  body  thereof  at  the  place  where  his  name  ought  to  be,  the 
insertion  of  his  name  in  such  blank  without  his  knowledge,  will 
not  discharge  him.'  An  administrator  procured  his  bond  from 
the  clerk's  office  some  time  after  it  had  been  signed  by  himself 
and  several  sureties,  and  approved  by  the  court.  He  then  struck 
out  the  name  of  one  of  the  sureties  and  inserted  therein  the 
name  of  another  person  as  surety,  and  the  bond  was  signed 
by  such  other  person.  This  was  done  without  the  knowledge  of 
the  clerk  or  of  any  of  the  parties  to  the  bond,  except  the  one 
whose  name  was  stricken  out.  Held,  the  surety  whose  name 
was  stricken  out,  and  all  the  sureties,  were  liable  in  equity  on  the 
bond.'  A  principal  and  his  sureties  were  sued  by  a  city  for  not 
complying  with  a  written  contract   to    construct    water  works. 

^Rhea  V.  Gibson's   Exr.  10    Gratt.  sRhoa^ig  j,  Frederick,  8  Watts  (Pa.) 

(Va.)  215.    To  similar  effect,  see  Peo-  448. 

pie  t^.  Organ,  27  111.  27.  « Smith  v.  Crooker,    5  Mass.   538; 

'  Wright  V.  Harris,  31  Iowa,  272.  The  State  v.  Pepper,  31  Ind.  76. 

*  Governor  r.  Lagow,  43  111.  134;  ''Harrison  t>.  Turbeville,  2  Humph. 
State  V.  Dunn,  11  La.  An.  549.  (Tenn.)  242. 

*  Sampson  v.  Barnard,  98  Mass.  359. 


ADVANCE  OF  DIFFERENT  AMOUNT  THAN  THAT  SURETY  LIABLE  FOE.    453 

Tljey  offered  to  prove  that  tlie  contract  liad  been  changed  by 
parol,  completed  as  changed  and  accepted  by  the  city.  Held,  the 
fact  could  not  be  shown,  as  the  city  could  only  contract  througli 
its  corporate  authorities  by  ordinance.'  A  party  guarantied  the 
payment  of  rent,  reserved  by  a  lease  under  seal.  Afterwards 
the  lessor  agreed  by  parol  to  reduce  the  monthly  rent,  and  the 
new  agreement  was  completely  execnted.  In  a  suit  on  the 
guaranty,  it  was  held,  that  as  the  parol  agreement  had  been, 
executed,  it  superseded  the  lease,  and  the  surety  was  discharged 
at  law.^ 

§  337.  When  surety  discharged  if  creditor  advance  to  princi- 
pal greater  or  less  amount  than  that  for  vvhich  surety  becomes  lia- 
ble.— Certain  parties  made  a  mortgage,  conditioned  to  indemnify 
the  mortgagee  from  all  advances,  etc.,  vv^hich  he  should  "incur  or 
make,  on  account  of  the  said  '-  (principal)  not  to  exceed  at 
any  one  time  the  sum  of  $10,000."  The  mortgagee  advanced  on 
account  of  the  principal  a  much  greater  sum,  and  it  was  held  the 
mortgagors  were  not  discharged  by  tliat  fact.  The  object  of  the 
restriction  of  the  amount  to  be  advanced,  was  to  limit  their  lia- 
bility to  that  sum,  and  not  to  prevent  the  mortgagor  from  giving 
the  23rincipal  a  credit  beyond  that  amount.'  The  same  thing  was 
held  where  a  guaranty  was  as  follows:  "  I  guaranty  the  payment 
of  all  sums  which  B  may  owe  C  for  goods  which  he  may  sell  B, 
provided  that  the  whole  amount  which  B  shall  owe  C  at  any  one 
time  shall  not  exceed  $1,100,  it  being  the  understanding  that  I 
am  in  no  event  to  be  liable  for  more  than  that  sum.  And  if  B 
shall  fail  punctually  to  pay  C  any  sum  which  may  become  due  to 
him,  I  am  to  have  90  days  after  demand  in  wi'iting  made  on  me, 
under  this  guaranty,  to  pay  the  amount  for  which  he  may  be  so 
in  default;  and  this  guaranty  is  npon  the  condition  that  said  G 
shall,  once  in  every  eight  months  from  tlie  date  hereof,  give  mo 
notice  in  writing,  of  said  B's  account  with  him."*  Certain  indi- 
viduals morto-aofed  divers  lots  ovsmed  bvthem,  to  a  bank,  to  secure 
a  loan  to  be  made  to  the  trustees  of  Shawneetown,  not  to  exceed 
$20,000.     The  loan  was  to  run  ten  years,  and  the  money  to  be" 

'  Sacramento  v.  Kirk,  7  Cal.  419.  charged,  see  Chapman  v.  McGrew,  20 

nVhite    V.    Walker,    31    111.    422.      111.  101. 
Holding,  that  in  such,  a  case,  where  ^Clagett  t\  Salmon,  5  Gill  &  Johns, 

the  parol   agreement   has  not    been      (Md.)  314. 

executed     the     surety    is     not    dis-  *  Curtis  r.  Hubbard,  6  Met.  (Mass.) 

186. 


454:       DISCHARGE    OF    SUKETT   BY    ALTERATION*  OF    CONTRACT. 

used  for  wallin<^  tlie  banks  of  a  river  adjacent  to  the  lots.  The 
bank  loaned  the  trustees  almost  $40,000  for  that  purpose,  and  took 
their  note  for  it,  and  brought  a  bill  to  foreclose  the  mortgage. 
Held,  on  demurrer  to  the  bill,  that  it  did  not  pretend  to  show  that 
the  loan  was  made  in  pursuance  of  the  mortgage.  The  mortgage 
limited  the  loan  to  $20,000,  the  bill  showed  it  was  for  twice  that 
sum.  "  The  sureties  have  never  undertaken  to  guaranty  the  per- 
formance of  such  an  agreement  as  was  made.  *  It  is  not  an 
answer  to  say  that  the  sureties  are  only  sought  to  be  held  respon- 
sible to  the  extent  of  $20,000,  for  it  may  well  be  that  they  would 
not  have  become  responsible  for  any  amount,  but  for  the  assur- 
ance that  the  loan  would  be  limited  to  the  amount  stipulated."^ 
The  plaintiff  agreed  to  let  one  N  have  $10,000  in  cash,  and  to 
conve}^  to  him,  clear  of  incumbrance,  a  tract  of  land  worth 
$10,000,  and  to  take  N's  two  notes  therefor,  payable  in  one  and 
two  years  each,  for  $10,000.  JST  was  also  to  pledge  certain  rail- 
road shares  as  collateral  security,  and  furnish  the  bond  of  respon- 
sible men,  conditioned  that  they  would  take  such  shares  and  notes 
at  the  expiration  of  the  two  j'ears,  and  pay  such  sum  as  should 
remain  unpaid  upon  the  notes.  Two  sureties,  with  the  knowledge 
of  this  agreement,  executed  such  a  bond.  Afterwards,  by  an 
agreement  between  the  plaintiff  and  'N,  the  plaintiff  only  let  IST 
have  $8,317,  retaining  the  balance  for  interest  in  advance  on  the 
two  notes,  and  instead  of  conveying  the  land  clear  to  the  plaintiff, 
took  back  a  mortgage  on  it  to  secure  the  purchase  money.  Held, 
the  sureties  were  discharged.  The  court  said  "  The  current  of 
authorities  seems  to  run  very  decidedly  one  way,  and  is  to  the 
effect  that  any  variation  between  the  principal  and  the  creditor, 
of  the  terms  of  the  original  understanding,  for  the  performance 
of  which  the  surety  became  responsible,  will  discharge  the  surety 
if  done  without  his  assent,  however  the  change  may  affect  his  in- 
terest." ^  Declaration  that  in  consideration  that  A  would  give  B 
"  credit  for  the  amount  of  400Z."  the  defendant  would  guaranty 
B's  dealings  "  to  the  amount  of  400^.  aforesaid."  B  only  bought 
300?.  worth  of  goods,  and  the  defendant  being  sued  on  the  guar- 
anty, set  up  that  as  400?.  worth  of  goods  were  not  advanced,  he 
was  not  liable.  Held,  he  was  liable.  The  proper  construction 
of  the  guaranty  was  that  the  defendant  was  to  be  liable  to  the  ex- 

'  Ryan  v.  Shawneetown,  14  111.  20,  ^  Watriss  v.  Pierce,  32  New  Hamp. 

per  Caton,  J.  560,  per  Eastman,  J. 


NO    DIFFERENCE    IF    VARIATION    BENEFIT    SURETY.  455 

tent  of  4:001.  If  it  were  otlierwise,  B  might,  by  his  refusal  to  huy 
400^.  worth  of  goods,  have  prevented  the  defendant  from  becom- 
ing liable  at  all.' 

§  33S.  Surety  discharged  if  variation  of  contract  is  for  his 
benefit.— If  a  material  alteration  is  made  in  the  contract  without 
the  surety's  consent,  he  is  discharged,  even  though  the  alteration 
may  be  for  iiis  benefit.  AYith  reference  to  this,  it  has  been  said: 
"Ko  principle  of  law  is  better  settled  at  this  day  than  that  the 
undertaking  of  the  surety,  being  one  strictisslmi  jur'is^  he  can- 
not, either  at  law  or  in  equity,  be  bound  farther  or  otherwise  tiuin 
he  is  by  the  very  terms  of  his  contract.  "  ISTeither  is  it  of  any 
consequence  that  the  alteration  in  the  contract  is  trivial,  nor  even 
that  it  is  for  the  advantage  of  tlie  surety.  Non  haeo  in  foedera 
veiii  is  an  answer  in  the  mouth  of  tlie  surety,  from  which  the 
obligee  can  never  extricate  his  case,  however  innocently  or  by 
whatever  kind  intentions  to  all  parties,  he  may  have  been  actu- 
ated. *  He  is  not  bound  by  the  old  contract,  for  that  has  been 
abrogated  by  the  new;  neither  is  he  bound  by  the  new  contract, 
because  he  is  no  party  to  it;  neither  can  it  be  split  into  parts  so 
as  to  be  his  contract  to  a  certain  extent  and  not  for  the  residue; 
he  is  either  bound  in  toto  or  not  at  all."  ^  A,  for  B's  accommo- 
dation, indorsed  B's  note  to  C.  It  was  agreed  between  all  the 
parties  at  that  time,  that  B  should  give  C  a  mortgage  upon  his 
stock  of  goods  as  a  security  for  the  debt,  and  this  was  done  as 
agreed.  C  failed  to  record  the  mortgage,  and,  at  the  end  of  three 
months,  canceled  it  and  took  another.  Held,  A  was  entirely 
discharged,  notwithstanding  it  was  affirmatively  proved  that  the 
mortgage,  if  duly  recorded  and  uncanceled,  would  have  been  no 
protection  to  the  surety  by  reason  of  older  liens;  and  this  on  the 
ground  that  the  contract  had  been  altered  v^-ithout  the  surety's 
consent.'  Where  after  a  surety  had  become  liable  for  an  annuity 
the  rate  of  the  annuity  was,  without  his  consent,  altered  from 
'201.  to  9Z.  per  cent.,  it  was  held  he  was  discharged.  The  Court 
said:  "  Whether  this  alteration  was  likely  to  be  injurious  to  the 
surety,  I  will  not  inquire;  the  alteration,  whether  beneficial  or 
not,  should  not  have  been  made  without  his  full  knowledge  and 

'  Lindsay  v.  Parkinson,  5  Irish  Law,  Rowan  v.  Sharp's  Rifle  Manf.  Co.  o3 

Rep.  124.  Ct.  1. 

^  Bethune  v.  Dozier,  10  Ga.  235,  per  ^  Atlanta  National   Bank  v.  Doug- 

Lumpkin,    J.    To   similar  effect,  see  lass,  51  Ga.  205. 


45G        DISCHARGE    OF   SUKETY    BY    ALTERATION    OF    CONTRACT. 

nssent;  tlie  snretj  has  a  riglit  to  know  what  is  the  contract  to 
whicli  he  is  party  as  surety."  ' 

§  o3l\  When  surety  on  lease  discharged  by  alteration  of 
contract. — Before  the  expiration  of  the  lease  of  a  house  and  lot, 
the  house  was  distroyed  by  lire,  and  by  mutual  agreement  between 
the  landlord  and  tenant,  the  lease  was  canceled.  Held,  this  was 
not  such  an  alteration  of  the  contract  as  discharged  a  surety  on 
the  lease  for  rent  which  had  accrued  prior  to  the  time  of  cancella- 
tion. The  court  said:  "The  obligation  which  the  lessees  under- 
took to  perform,  so  far  as  it  relates  to  the  payment  of  the  rent 
which  had  then  accrued,  was  not  changed;  it  remained  in  the  pre- 
cise terms  it  was  before;  it  was,  as  to  the  then  future,  the  execu- 
tory portion  of  it  that  was  abrogated.  *  The  obligation  to  pay 
the  rent  for  which  judgment  has  been  recovered,  has  not  in  letter 
or  spirit  been  changed,  nor  is  it  pretended  that  any  right  of  the 
defendant  growing  out  of  the  contract  is,  so  far  as  it  relates  to 
that  obligation,  in  any  respect  altered  or  impaired."*  A  lease 
with  surety  provided  for  the  payment  of  rent  quarterly.  The 
lessee  paid,  and  the  landlord  accepted,  rent  monthly  for  some 
time,  but  there  was  no  agreement  that  the  rent  should  be  so  re- 
ceived. Held,  the  contract  was  not  changed,  nor  the  surety  dis- 
charged.^ Where  a  lease  with  surety  provided  for  the  payment 
of  $43  a  month  as  rent,  and  the  landlord  subsequently  agreed  to 
take  $40  a  month,  it  was  said  that  this  did  not  discharge  the  surety.* 
A  yard,  shed  and  frame  dwelling  house  were  rented  for  $375  a 
month,  and  a  stranger  guarantied  the  rent.  The  lessor  took  back 
the  dwelling  house  and  rented  it  to  another,  and  reduced  the  rent 
for  the  remainder  of  the  premises  to  $300  a  month,  and  it  was  held 
the  guarantor  was  thereby  discharged.^  A  lease  with  surety  provi- 
ded that  if  the  premises  should  be  destroyed  by  fire,  the  lease  should 
thereupon  terminate.  The  premises  were  totally  destroyed  by 
fire,  but  the  tenant  still  held  the  site  and  refused  to  surrender. 
Held,  the  surety  was  discharged  from  the  time  the  premises  were 
destroyed,  as  the  lease  was  thereby  terminated,  and  if  there  was  a 

'Eyre  r.  HoUier,   Lloyd  &    Goold  ^Ogden  v.  Rowe,   3  E.   D.   Smith 

(Temp.  Plunket)  250,  per  Plunket,  C.  (N.Y.)  312. 

='Kine:sbury  v.   Westfall,   61    New  *  Ellis  v.   McCormick,  1  Hilton  (N. 

York,  356,  per  Gray,  C.  To  similar  ef-  Y.)  313. 

feet,   see  Kingsbury  v.  Williams,   53  *  Penn  v.  Collins,  5   Robinson  (La.) 

Barb.  (N.  Y.)  142.  213. 


CHANGE    OF    TKINCIPAl's    COMPENSATION.  457 

further  holding  it  was  not  under  the  lease.*  Principal  and  surety 
executed  a  lease  by  which  they  covenanted  to  return  the  property 
in  good  order.  The  principal  held  over  for  about  a  year  after  the 
expiration  of  the  term,  without  any  demand  for  possession  by  the 
lessors.  Held,  the  surety  was  not  liable  for  rent  during  the  hold- 
ing over,  as  that  was  by  the  express  or  implied  consent  of  the 
lessors,  and  amounted  to  a  new  contract.^ 

§  340.  When  judgment  against  principal  does  not  bar  suit 
against  surety. — The  recovery  of  a  judgment  against  the  princi- 
pal alone,  where  the  suit  is  not  on  the  obligation  signed  by  the 
surety,  or  where  the  suit  is  on  the  obligation,  and  it  is  several, 
will  not  generally  bar  a  subsequent  suit  for  the  same  cause  of 
action  against  the  surety.  Thus,  it  has  been  held  that  the  recov- 
ery of  a  judgment  against  the  principal  in  a  lease  which  he  signed 
alone,  is  no  bar  to  an  action  against  him  and  a  guarantor  on  a 
guaranty  executed  by  him  and  the  guarantor  jointly.  The  court 
said:  "  I  see  no  impropriety  or  difficulty  in  a  party  being  more 
than  once  sued  for  the  enforcement  of  the  same  duty  or  obliga- 
tion, if  he  have  given  more  than  one  contract  in  different  forms 
for  its  performance." '  A  judgment  in  assumpsit  against  an 
officer  for  his  default,  the  suit  not  being  on  his  official  bond,  is 
no  bar  to  a  subsequent  suit  in  a  debt  against  him  and  the  surety 
on  his  bond.*  Two  parties  indorsed  a  note  as  joint  guarantors, 
and  judgment  was  recovered  against  one  of  them  on  the  guarant3\ 
Held,  this  was  a  bar  to  a  suit  on  the  guaranty  against  the  other 
guarantor.  The  court  said  that  upon  the  recovery  against  one,  the 
entire  contract  was  merged  in  the  judgment,  and  there  could  be 
no  recovery  thereon  against  the  other.  "There  is  no  rule  better 
settled  than  that  a  judgment  against  one  on  a  joint  contract  of 
several,  bars  the  action  against  the  others,  even  though  the  latter 
were  dormant  partners,  unknown  to  the  plaintiff  when  the  orgi- 
nal  action  was  brought.^ 

§  341.  When  surety  not  discharged  because  compensation  of 
principal  changed. — Where  the  compensation  which  shall  be  paid 
the  principal  in  an  employment  is  not  a  part  of  the  contract  of 

'  Taylor  V.  Hortop,  22  Up.  Can.  C.  P.  Ala.  147;  Commissioners  v.  Can  an,  2 

R.  542.  Watts  (Pa.)  107.     To  a  contrary  effect, 

'•^  Kyle  V.  Proctor,  7  Bush  (Ky.)493.  see  Sloan  v.  Creasor,  22  Up.  Can.  Q.  B. 

3  White  V.  Smith,  33  Pa.  St.  186,  per  R.  127. 

Thompson,  J.  ^  Brady  v.  Reynolds,  13  Cal.  31,  per 

*  Fireman's  Ins.  Co.  v.  McMillan,  29  Field,  J. 


458        DISCHAKGE    OF   SURETY   BY    ALTERATION    OF    CONTRACT. 

the  surety  for  Lis  good  behavior  therein,  a  change  in  the  amount 
of  such  compensation  which  does  not  cliange  the  duties  of  the 
principal,  nor  vary  the  risk  of  the  surety,  docs  not  generally  dis- 
charge the  surety.  Thus,  the  bond  of  an  assistant  overseer  of  a 
parish  was  conditioned  for  his  good  behavior  "  during  the  contin- 
uance of  his  said  appointment."  His  salary,  when  appointed,  was 
16/.  a  year,  but  the  office  was  not  annnal,  nor  for  any  definite  pe- 
riod. After  he  had  held  the  office  five  years,  by  his  own  con- 
sent and  by  vote  of  the  authorities,  his  salary  was  reduced  to  14:1. 
a  year,  and  he  continued  in  the  office,  and  afterwards  made  de- 
fault: Held,  the  sureties  on  his  bond  were  liable  therefor.  The 
court  said:  "If  the  sureties  had  thought  that  the  amount  of 
the  salary  was  an  essential  ingredient  in  the  contract,  they  ought 
to  have  taken  care  to  have  had  a  stipulation  inserted  in  the  con- 
dition of  the  bond  that  they  would  be  liable  only  so  long  as  the 
overseer  was  continued  at  the  same  salary."  ^  To  a  declaration 
against  a  bond  conditioned  for  the  faithful  performance  of  his 
duty  by  W  so  long  as  he  should  continue  in  the  plaintiff's  service 
in  the  ca|)acity  of  their  agent  at  1^,  and  in  any  other  capacity 
whatsoever,  the  defendant  plead  that  W  entered  into  the  plaintiff's 
employment  as  snch  agent  at  a  certain  commission  or  percentage 
on  the  business  done,  and  the  defendant  executed  the  bond  under 
the  agreement  that  he  should  be  so  paid,  and  that  afterwards  the 
plaintiff,  without  the  defendant's  consent,  changed  the  mode  of 
remuneration  to  a  fixed  salary.  The  bond  itself  said  nothing  about 
the  salary,  and  it  w\as  held  the  surety  was  not  discharged.^  An  in- 
surance company  appointed  an  agent  to  be  paid  by  certain  com- 
missions, with  a  guaranty  by  the  company  that  the  commissions 
should  amount  to  a  specified  sum  monthly,  the  agency  to  be  termi- 
nated by  either  party  at  three  months'  notice.  The  agent  gave  bond 
conditioned  that  he  "  shall  faithfully  conform  to  all  instructions 
and  directions  which  he,  as  such  agent,  may  at  any  time  receive 
from"  the  company.  The  sureties  on  the  bond  knew  of  the  terms 
of  the  appointment  of  their  principal  when  they  became  bound. 
Subsequently  the  agent  and  the  company  agreed  that  the  agent 
should  receive  increased  commissions,  but  give  up  all  claim  on 
the  guaranty.  Held,  the  sureties  were  not  thereby  discharged. 
The  new  agreement  did  not  affect  the  identity  of  the  office,  nor 

1  Frank  i'.  Edwards,  8  Wels.  Hurl.  &  «  b^^],  ^^   Toronto  v.  Wilniot,  19 

Gor.  214,  per  Park,  B.  Up.  Can.  Q.  B.  R  73. 


CHANGE   OF    PEINCIPAl's   DUTIES.  459 

the  duties  of  the  agent.  He  was  not  an  agent  at  a  fixed  salary, 
either  before  or  after  tlie  new  agreement.*  Where  the  directors 
of  a  bank,  in  consequence  of  a  private  loss  sustained  by  their 
cashier,  make  him  a  payment  of  his  sahiry  for  six  months  in  ad- 
vance, and  he  afterwards  pays  himself  a  second  time  by  monthly 
instalments,  for  the  same  period,  the  surety  on  his  official  bond, 
who  had  bound  himself  for  the  faithful  performance  of  his  du- 
ties by  the  cashier,  and  to  save  the  bank  harmless  from  any  neg- 
ligence or  misconduct  on  his  part,  and  that  he  should  render  a 
faithful  account  of  all  moneys  and  effects  committed  to  his  charge, 
will  be  bound  for  the  deficiency.*  A  bond  recited  that  L  had 
been  appointed  a  railroad  clerk  "  at  a  yearly  salary  of  lOOZ.,"  and 
was  conditioned  for  his  good  behavior,  his  duty  being  to  sell  coal. 
Afterwards,  his  compensation  was  changed  to  a  commission  of 
6d.  a  ton  on  all  coal  sold  by  him,  and  he  made  more  under  that 
arrangement  than  I'OOl.  a  year.  Held,  the  surety  was  discharged. 
The  court  said:  "Wlien  the  mode  of  remuneration  was  altered, 
the  agency  was  different,  and  the  risk  of  the  sureties  was  mate- 
rially increased.  *  The  condition  recites  that  the  company  have 
agreed  to  appoint  the  principal  as  their  agent  at  a  yearly  salary 
of  lOO^.y  therefore,  there  was  a  bargain  between  the  comjDany 
and  the  sureties  that  the  agent  should  have  that  salary."  ^ 

§  342.  Surety  for  conduct  of  principal  discharged  if  his  duties 
are  changed. — If  the  duties  which  tlie  principal  is  to  perform  are 
varied  by  agreement  between  the  principal  and  obligee,  after  the 
surety  for  the  conduct  of  principal  has  become  bound,  such  surety 
will  generally  be  thereby  discharged.  Thus,  A  became  surety 
for  the  good  conduct  of  B  as  agent  for  the  sale  of  granite  for  C. 
Afterwards,  by  arrangement  between  B  and  C,  their  contract  was 
changed,  so  that  B,  instead  of  being  a  mere  agent,  became  a  con- 
ditional purchaser  of  the  stone,  if  sold  for  a  certain  jDrice,  and 
responsible  for  all  bad  debts  contracted  under  his  own  sales. 
Held,  A  was  not  liable  for  any  of  B's  acts  after  the  new  agree- 
ment had  been  made.*  A  surety  by  bond  for  the  due  perform- 
ance by  another  of  the  office  of  bank  "  agent,"  is  not  responsible 

'  Amicable  Miitual  Life  Ins.  Co.  v.  ^  Menard  v.   Davidson,   3  La.  An. 

Sedgwick,   110  Mass.    1G3.     Holding  480. 

surety  discharged  by  alteration  of  com-  ^  Northwestern  R.  R.  Co.  v.  Whin- 

nensation  of  principal,  and  other  cir-  ray,  1  Hurl.  &  Gor.  (10  Exch.)  77,  per 

cumstances,    see  Bagley  v.   Clark,   7  Alderson  &  Pratt,  B.  B. 

Bosw.  (N.Y.)  94.  ■'Gassv.  Stinson,  2  Sumner,  453. 


4G0         DISCnAKGE    OF    SURETY    BY    ALTERATION    OF    CONTRACT. 

for  losses  occurring  after  the  nature  of  the  agency  has  been 
changed,  and  tlie  agent  appointed  "  cashier,"  it  appearing  that 
the  offices  were  not  the  same,  and  that  their  duties  were  some- 
wliat  different.^  The  bond  of  the  agent  of  a  liat  manufacturing 
company  provided  that  he  shoukl  laithfully  discharge  tlie  duties 
of  his  office,  and  account  for  and  pay  over  whatever  funds  he 
sliould  have  in  his  hands,  whenever  thereto  requested.  At  that 
time  tlie  agent  had  cliarge  of  a  store  belonging  to  the  company, 
and  his  duties  were  to  deliver  hats  to  the  proprietors,  keep 
accounts  with  them,  receive  their  promissory  notes,  and  deliver 
them  to  the  treasurer  of  the  company,  and  to  sell  to  other  per- 
sons, for  which  services  he  received  a  commission,  he  guaranty- 
ing the  debts  on  sale  by  retail.  Afterwards  it  was  agreed 
between  the  agent  and  the  company  that  the  store  should  be  dis- 
continued, and  the  agent  should  deliver  the  hats  in  cases  to  the 
proprietors  from  his  own  store,  and  he  was  to  be  supplied  with 
hats  at  wholesale  prices  for  retailing  on  his  own  account,  and  was 
to  keep  the  books  and  account  with  the  company.  Held,  the  acts 
of  the  agent  under  the  new  arrangement  were  not  covered  by 
the  bond."  After  a  surety  became  liable  for  the  conduct  of  a 
clerk  in  a  bank,  the  clerk,  upon  having  his  salary  raised,  under- 
took to  become  liable  for  one-fourth  of  the  discounts.  Held,  the 
surety  was  not  liable  for  anything  occurring  after  the  change  in 
the  terms  of  the  clerk's  employment.^  A  being  collector  of  taxes, 
by  writing  under  seal,  appointed  B  his  deputy  for  eight  town- 
ships, naming  them,  B  gave  bond,  with  C  as  surety,  which 
recited  B's  appointment  for  the  eight  townships,  and  provided 
that  B  shoukl  "  continue  truly  and  faithfully  to  discharge  the 
duties  of  said  appointment,  according  to  law."  Afterwards,  by 
agreement  betw^een  A  and  B,  the  paper  of  appointment  was 
changed,  and  the  name  of  another  township  interlined,  so  that 
the  appointment  was  then  for  nine  instead  of  eight  townships. 
Held,  C  was  not  liable  for  any  of  the  money  collected  by  B  after 
the  change  of  the  appointment.'' 

§  343.      When   surety  discharged  if  responsibility  of  the  prin- 

'  Bank  of  Upper  Canada  v.  Covert,  ^  Bonar  r.   Macdonald,  3  House  of 

5  Up.  Can.  K.  B.  R   (0.  S.)  541.  Lords  Cases,  226. 

''Boston  Hat  Manufactory  v.  Mes-  ^ Miller  v.  Stewart,  9  Wheaton,  680; 

singer,  2  Pick.  223.  Miller  v.  Stewart,  4  Washington  (C. 

C.)  26. 


VARYING    EESPONSIBILITY   OF   rEINCIPAL.  461 

cipal  varied. — The  sureties  of  an  assistant  overseer  of  a  parish, 
are  no  longer  held  on  their  bond  for  his  conduct,  if  he  accepts  of 
a  new  appointment  in  lieu  of  the  old  one,  at  a  different  compen- 
sation, and  which  is  incompatible  with  the  first  appointment." 
It  lias  been  held  that  the  sureties  in  a  cashier's  bond,  in  which 
they  undertake  to  save  the  bank  harmless  from  every  loss  that 
may  arise  from  the  cashier's  mistakes,  as  well  as  from  losses  aris- 
ing from  his  frauds,  inattention  or  negligence  in  the  performance 
of  his  duties,  are  exonerated  by  a  subsequent  increase  of  the 
capital  stock  of  the  bank,  after  the  additional  capital  has  been 
paid  in.  The  court  said:  "  It  is  an  established  rule  of  law,  that 
a  party  to  a  contract  like  that  of  these  defendants  shall  not  be 
bound  beyond  the  extent  of  the  engagement  which  appears  from 
the  terms  of  the  contract  and  the  nature  of  the  transaction,  to 
have  been  in  his  contemplation  at  the  time  of  e'ntering  into  it, 
and  that  his  liability  cannot  without  his  consent  be  extended  or 
enlarged,  either  by  the  obligee  or  by  operation  of  law."  ^  The 
bond  of  an  agent  of  a  life  insurance  company  was  conditioned  for 
the  faithful  performance  by  him  of  all  the  duties  of  his  appointment, 
as  the  same  sliould  be  prescribed  by  the  board  of  directors,  and 
that  he  should  account  for  such  money  as  should  come  to 
his  hands  by  virtue  of  his  office.  The  company  in  connection 
with  its  business,  engaged  in  banking,  which  by  its  charter  it  had 
no  right  to  do,  and  the  agent  received  money  in  the  banking 
branch  of  the  business  and  made  default.  Held,  the  surety  on 
the  bond  was  not  liable  for  such  default.  The  surety  had  a  right 
to  suppose  that  nothing  would  be  done  which  the  charter  did  not 
permit.^  The  chief  clerk  at  a  railway  station,  gave  bond  with 
surety,  conditioned  for  his  good  behavior.  Afterwards,  by  act  of 
parliament,  other  lines  were  added  under  the  management  of  the 
company,  to  which  the  clerk  was  bound  to  account.  Held,  the 
duties  of  the  clerk  were  not  changed  and  the  sureties  remained 
liable."  A  bond  to  a  railroad  company  recited  that  the  principal 
had  been  "  appointed  by  the  said  company,  as  ticket  and  freight 
agent  at  Ellicott's  Mills,"  and  was  conditioned  for  the  faithful 
performance  of  the  duties  of  said  office  so  long  as  he  should  hold 

'  Mailing  Union  v.  Graham,  Law  Morris'  Canal  &  Banking-  Co.  v.  Van 
Rep.  5  Com.  PL  201.  Vorsts'  Admx.  1  Zab.  (N.  J.)  100. 

^Grocer's    Bank    v.    Kingman,   16  'Blairv.  Pei-pefc.  Ins.  Co.  lOMo.  559. 

Gray,  473,  per  Met  calf,  J.    Contra,  see         *  Railway  Co.  v.   Goodwin,  3  Wels. 

Hurl.  &  Gor.  320, 


462        DISCHAKGE    OF   SUEETY    BY   ALTERATION    OF    CONTRACT. 

tlic  same.  At  that  time  Ellicott's  Mills  was  a  second-class  station, 
but  the  company  subsequently  made  it  a  first-class  station.  At 
first-class  stations  a  greater  rate  for  freight  was  paid  than  at  second- 
class  ones,  but  the  duties  of  the  ticket  and  freight  agent  were  the 
same  at  both.  Held,  the  surety  in  the  bond  was  not  discharged.^ 
§  344.  Discharge  of  surety  of  cashier,  of  surety  on  distiller's 
bond,  and  of  surety  v\7^hen  obligees  subsequently  become  incor- 
porated.— Fifteen  years  before  a  bank  charter  would  have  expired 
by  limitation,  a  cashier  was  appointed  and  gave  a  general  bond 
for  his  good  behavior.  Afterwards,  and  before  the  time  limited 
for  the  expiration  of  the  charter,  it  was  extended  by  act  of  the 
legislature  for  twenty  years.  The  cashier  continued  to  act  as 
such,  and  was  guilty  of  a  default  after  the  charter  would  have  ex- 
pired if  the  extension  had  not  been  granted.  Held,  the  sureties 
were  liable  for  such  default.^  A  bank  cashier  gave  a  bond,  con- 
ditioned that  he  would  "  well  and  truly  perform  the  duties  of 
cashier."  The  bank  was  guilty  of  a  default,  by  which  its  char- 
ter became  null  and  void,  and  the  bank  dissolved,  but  the  legis- 
lature afterwards  revived  and  continued  the  charter  in  force,  as 
if  no  forfeiture  had  taken  place.  Held,  the  sureties  were  not  li- 
able for  any  act  of  tlie  cashier  after  the  forfeiture  of  the  charter. 
They  may  have  contemplated  that  such  forfeiture  would  take 
place  when  they  became  bound."  The  cashier  of  a  branch  bank 
was,  by  vote  of  the  directors  of  the  parent  bank  suspended,  and 
notice  to  that  effect  was  sent  to  the  president  of  the  branch  bank, 
and  received  by  him  two  days  afterwards,  and  he  notified  the 
cashier  thereof  the  next  day.  Held,  the  sureties  of  the  cashier 
were  liable  for  his  acts  until  the  time  he  was  notified  of  his  sus- 
pension.* An  insurance  agent  having  given  bond  for  the  per- 
formance of  his  duties  as  such,  subsequently  resigned  his  agency 
in  writing,  and  it  was  accepted  in  writing,  but  he  continued  to 
be  employed  by  the  insurance  company.  Held,  the  sureties  on 
the  bond  were  not  liable  for  any  default  of  the  agent  happening 
after  his  resignation.^  A  bond  was  given  by  principal  and  sure- 
ty to  twelve  persons  and  their  successors,  as  governors  of  the 

1  Strawbridge  v.   The  Baltimore  &  *  McGill  v.  Bank  of  U.  S.  12  Whea- 

Ohio  R.  R.  Co.  14  Md.  360.  ton,  511;  Bank  of  U.  S.  r.   Magill,  1 

*  Exeter  Bank  v.   Rogers,    7  New      Paine,  681. 

Hamp.  21.  ^  Amicable  Mutual  Life  Ins.    Co.  r. 

*  Bank  of  Washington  r.   Barring-       Sedgwick,  110  Mass.  163. 
ton,  2  Pen.  &  Watts  (Pa.)  27. 


DEPAKTUKE  FKOM  CONTKACT.  4G3 

society  of  musicians,  conditioned  that  the  principal  shonld  ac- 
count with  them  and  their  successors,  governors,  etc.,  as  their 
collectors.  Afterwards  the  society  was  incorporated,  and  it  was 
held  that  the  surety  was  not  liable  for  any  default  of  the  princi- 
pal, occurring  ,  after  the  incorporation.^  A  distiller's  bond  to 
the  United  States,  which  followed  the  notice  as  to  the  place 
where  a  distillery  was  to  be  carried  on,  and  recited  that  it  was  to 
be  carried  on  "  at  the  corner  of  Hudson  street  and  East  Ave- 
nue," does  not  bind  the  sureties  for  business  carried  on  "  at  the 
corner  of  Hudson  and  Third  streets,"  in  the  same  town,  even 
though  the  principal  had  no  distillery  at  the  first  named  place, 
and  the  two  places  were  only  about  four  blocks  apart.  The 
United  States  had  a  lien  on  the  land,  upon  which  tiie  distillery 
was  situated,  and  the  sureties  might  have  been  Avilling  to  be 
responsible  for  a  distillery  at  one  place  and  not  at  another.^  It 
has  been  held  to  be  no  defense  to  the  sureties  on  a  distiller's 
bond,  that  after  they  became  bound,  and  without  notice  to 
them,  the  capacity  of  the  distillery  was  declared  to  be  greater 
than  when  they  became  bound.^ 

§  345.  Dealing  by  creditor  -writh  principal,  •which  amounts  to 
a  departure  from  the  contract,  discharges  surety. — Any  dealings 
with  the  principal  by  the  creditor,  which  amount  to  a  departure 
from  the  contract  by  which  the  surety  is  bound,  and  which  by 
possibility  might  materially  vary  or  enlarge  the  latter's  liabilities 
without  his  consent,  generally  operate  to  discharge  the  surety. 
Thus,  three  notes  were  indorsed  by  sureties,  and  the  principal  at 
the  same  time  executed  to  the  payee  a  chattel  mortgage,  by  the 
terms  of  which  the  mortgaged  property  was  to  be  sold  only  on 
default  of  the  principal  in  paying  the  notes  at  maturity.  The 
first  note  coming  due  and  being  dishonored,  by  consent  of  all 
parties,  a  new  one  was  substituted  in  its  place.  After  the  matur- 
ity of  the  dishonored  note,  but  before  the  new  one  or  any  of  the 
others  came  due,  the  creditor,  with  the  assent  of  the  principal, 
sold  the  property  and  applied  the  proceeds  to  pay  the  substituted 
note  and  the  note  next  due.  Held,  the  sureties  were  discharged 
by  the  sale  of  the  property.*  If  at  the  time  a  surety  becomes 
liable  for  a  debt,  the  principal  without  his  knowledge  gives  the 

1  Dance  v.  Girdler,  4  Bos.  &  Pul.  34.  »  United  States  v.  Woodman,  1  Utah, 

2  United  States  v.  Boecker,  21  Wal-      265. 

lace,  652.  *Mayhew  v.  Boyd,  5  Md.  102. 


404        DISCHABGE    OF    SUKETY    BY    ALTERATION    OF    CONTEACT. 

creditor  a  separate  agreement  to  pay  a  liigli  rate  of  interest,  it 
lias  been  held  that  this  discharges  the  surety.^  A  surety  for  the 
completion  of  work  to  be  performed  by  the  principal,  where,  by 
the  terms  of  the  contract,  the  principal  is  to  be  paid  by  instal- 
ments, is  discharged  if  the  principal  is  paid  faster  than  the  con- 
tract provides.  The  surety  is  thereby  deprived  of  the  induce- 
ment which  the  principal  would  have  to  perform  the  contract  in 
due  time.  "  There  must  be  an  assent  by  the  surety  to  the  credi- 
tor's dealing  with  the  principal  debtor  otherwise  than  in  the  man- 
ner pointed  out  by  the  contract;  and  it  is  no  answer  to  say  that 
it  is  for  the  advantage  of  the  suretj^,  or  that  he  has  sustained  no 
prejudice,"^  Where  a  surety  entered  into  a  bond,  conditioned 
that  his  principal  should  insure,  and  keep  insured,  certain 
buildings  on  land  mortgaged  by  him  to  the  creditor,  and  after- 
wards the  positions  of  tiie  buildings  were  altered  by  the  obligee, 
the  out-buildings  being  brought  nearer  to  the  house,  and  the 
risk  tlius  increased,  it  was  held  that  the  surety  was  thereby  dis- 
charged.^ A  having  purchased  3,000  shares  of  stock,  B  executed 
a  guaranty  to  save  A  harmless  from  any  loss  on  the  purchase  oc- 
curring within  thirty  days,  and  this  guaranty  was  i*enewed  from 
time  to  time.  A  purchased  other  large  amounts  of  the  same 
stock  and  mixed  the  3,000  shares  therewith  till  their  identity  was 
lost,  and  made  sales  of  stock  from  time  to  time.  The  transac- 
tions resulted  in  a  loss,  and  it  was  held  that  A,  having  rendered 
it  impossible  to  ascertain  whether  there  was  a  loss  on  the  3,000 
shares,  could  not  recover  anything  from  B  on  the  guaranty.*  A 
principal  debtor  j^laced  in  the  hands  of  his  creditor  certain  claims 
against  third  parties,  to  be  collected  and  applied  to  the  payment 
of  his  debts.  There  was  a  surety  for  such  part  of  the  debt  of  the 
principal  as  might  remain  after  the  claims  placed  in  the  hands 
of  the  creditor  had  been  collected  and  applied  to  the  payment  of 
the  debts.  If  the  claims  had  been  collected  in  full,  they  would 
have  paid  the  debt  of  the  principal.  The  creditor  compounded 
the  claims  for  less  than  the  amount  due  on  them,  and  there  was 
no  evidence  whether  the  claims  were  good  or  bad:    Held,  the 

'  Shaver  v.  Allison,  11  Grant's  Ch.  Calvert  v.  London  Dock  Co.  2  Keen, 

11.355;    contra,   Coats  v.  McKee,    26  638;  Bragg  i?.  Shain,  49  Cal.  131. 
Incl.  223.  3  Qj-ieve  v.  Smith,  23  Up.  Can.  Q.  B. 

*  General  Steam  Navigation  Co.  v.  R.  23. 
Rolt,  6  J.  Scott  (N.  S.)  550,  per  Crow-  *  Strong  v.  Lyon,  63  New  York,  172. 

er  &  Willes,  JJ.    To  same  effect,  see 


CHANGING  PART  OF  CONTRACT.  465 

surety  was  discharged,  but  the  court  declined  to  say  what  would 
have  been  the  law  if  it  had  been  proved  that  money  was  made 
by  the  compromise/  A  guaranty  to  be  accountable  for  a  cer- 
tain amount  to  be  advanced  to  the  principal,  does  not  bind  the 
guarantor  where,  without  his  consent,  it  is  delivered  to  a  credi- 
tor of  the  principal  in  payment  of  a  less  sum  then  due  from  the 
principal  to  such  creditor,  and  such  creditor  advances  the  princi- 
pal a  sum  which,  together  with  the  debt,  equals  the  sum  authorized 
by  the  guaranty.^  A  became  surety  on  a  promissory  note  due  on 
demand  to  secure  a  floating  balance  due,  or  to  become  due,  a  bank 
from  B.  Afterwards  the  bank,  with  the  consent  of  B,  credited 
him  with  the  amount  of  the  note:  Held,  tlie  note  had  been  di- 
verted from  the  purpose  for  which  it  was  given,  and  the  surety 
was  thereby  discharged.^  If  a  suretj^  agrees  to  make  good  the 
deficiency  arising  from  a  sale  of  goods  at  a  given  j^lace,  which  are 
consigned  to  the  correspondent  of  the  person  to  whom  the  secu- 
rity is  given,  who  has  the  whole  control  of  the  venture,  a  sale  by 
the  consignee  at  another  place  releases  the  surety.* 

§  346.  Surety  for  alimony  discharged  if  alimony  changed  by 
court — When  changing  part  of  contract  does  not  release  surety. 
— A  divorced  husband  was  adjudged  to  pay  his  former  wife  a 
certain  sum,  at  stated  jDcriods,  as  alimony,  and  gave  a  bond  with 
surety  for  such  payment.  Afterwards,  on  the  wife's  petition,  and 
without  the  consent  of  the  husband  or  surety,  the  decree  was 

'  American  Bank  v.   Baker,  4  Met.  agreement  to  guaranty  a  bill  for  a  sum 
(Mass.)  164.  certain  does  not  bind  the  guarantor 
-  Wright   V.  Johnson,  8  Wend.  512.  for   anything   if  a  bill  is  taken  for  a 
^Archer  t?.  Hudson,  7  Beavan,  551.  greater  sum,   Phillips  v.   Astling,    2 
*  Ludlow  V.  Simond,  2  Gaines'  Cases  Taunt.  206.     A  letter  of  credit  which 
in  Error,   1 .     A  surety  who   agrees  to  authorizes  the  drawing  of  bills  at  sixty 
become  liable  for  a  debt  due  on  a  cer-  days,  will  not  render  the  signers  liable 
tain  day,  is  not  liable  if  a  shorter  cred-  for  bills  drawn  at  ninety  days.  Brick- 
it  is  given,  Walrath  v.  Thompson,  6  head  v.  Brown,  5  Hill  (N.  Y.)  634; 
Hill,  540.     A  surety  for  the  acts  of  a  Brickhead  v.   Brown,   2   Denio,  875. 
firmis  not  liable  for  the  acts  of  one  part-  "  Suretee  of  the  peace  is  discharged 
ner  after  the  other  is  dead,  Connecti-  by  the  death  of  the  King,  for  'tis  to 
cut  Mut.  Life   Ins.  Co.  v.   Bowler,  1  observe  the  peace  of  that  King,  and 
Holmes,  263.     A  surety  for  the  losses  when  he  is  dead  'tis  not  his  peace." 
of  a  partnership  which  is  to  continue  Anon.  Brookes'  NewCas.  172.     Hold- 
five  years,  is  entirely  discharged  if  the  ing  that  novation  is  never  presumed, 
partnership  is  carried  on  a  year  longer  but  must  clearly  result  from  the  agree- 
than  the  stipulated  time.  Small  i\  Cur-  ment  of   the     parties,  see    Gillet    v. 
rie,  5  De  Gex,  Macn,  &  Gor.  141.     An  Rachal,  9  Robinson  (La.)  276. 
30 


4CG        DISCIIAEGE    OF    SURETY   BY   ALTERATION    OF    CONTRACT. 

changed  by  tlie  court,  so  as  to  require  the  payment  of  a  larger 
sum  at  diflerent  times.  Held,  the  surety  was  discharged.  The 
court  said:  "The  surety's  liability  is  limited  by  the  original  judg- 
ment, and  that  if  not  destroyed,  has  been  very  materially  altered 
without  his  consent.  ^'  This  case  is  not  taken  out  of  the  general 
rule,  *  by  the  fact  that  the  defendant  entered  into  the  agree- 
ment, with  knowledge  that  the  court  had  power  to  alter  the  judg- 
ment for  alimony.  Any  person  who  becomes  surety  for  the  per- 
formance of  an  obligation,  does  so  with  knowledge  that  such  ob- 
ligation may  lawfully  be  altered  by  the  principals.  !Nevertheless, 
if  they  do  alter  it  without  his  consent,  he  is  discharged;  and  so 
it  must  be  if  a  secured  judgment  be  altered  without  the  consent 
of  the  sui-ety."  '  "Where  a  surety  is  bound  by  one  bond  for  the 
performance  by  the  principal  of  two  distinct  things,  and  the 
contract  is  varied  as  to  one  of  the  things  to  be  performed,  the 
surety  is  discharged  as  to  the  matter  concerning  which  the  con- 
tract has  been  changed,  but  is  not  discharged  from  that  as  to 
which  it  has  not  been  changed.'' 

§  347.  Miscellaneous  cases  holding  surety  discharged  by  alter- 
ation of  contract. — The  principals  in  a  bond  obligated  themselves 
to  the  United  States  to  open  a  ship  canal  three  hundred  feet  in 
width  and  twenty  feet  in  depth  and  keep  it  open  the  same  width 
and  depth,  a  number  of  years  after  the  acceptance  of  the  work, 
by  the  secretary  of  war.  The  principals  finislied  the  work  eight- 
een feet  deep,  and  the  United  States  accepted  it  in  that  condition. 
The  principals  did  not  keep  the  canal  open  to  a  depth  of  eighteen 
feet,  and  it  was  held  the  sureties  in  the  bond  were  not  liable  for 
such  default.'  A  submission  to  arbitration  provided  that  before 
the  making  of  an  award,  the  parties  claiming  damages  should  re- 

'  Sage  V.   Strong,  40  Wis. '  575,  per  York,  is  not  liable  if  the  mode  of  pay- 

Lyon,  J.  ment  is  changed  to  bills  on  London; 

*  Harrison  t'.  Seymour,  Law  Rep.  1  Edmondston  i\  Drake,  5  Peters,  624. 
Com.  PL  518.  To  same  effect,  see  Holding  guarantor  discharged  under 
Skillett  p.  Fletcher,  Law  Rep.  1  Com.  peculiar  circumstances,  by  alteration 
PI.  217;  affirmed,  Skillett  v.  Fletcher,  of  the  contract,  see  Colemard  «;.  Lamb. 
Law  Rep.  2  Com,  PI.  469.*  Holding  15  Wend.  329.  A  note  given  as  col- 
surety  discharged  under  special  circum-  lateral  security  for  the  performance  of 
stances,  by  change  of  contract  extend-  a  contract,  is  discharged  if  the  con- 
ing time,  see  Skip  v.  Edwards,  9  Mod.  tract  is  materially  changed;  Brigham 
438;  Farmers  and  Mechanics  Bank  v.  v.  Wentworth,  11  Cush.  123. 
Kercheval,  2  Mich.  504.  The  guaran-  ^  United  States  v.  Corwine,  1  Bond, 
tor  of  a  debt  to  be  paid  in  bills  on  New  339. 


MISCELLANEOUS   CASES.  467 

lease  all  their  causes  of  action  on  certain  siiits  then  pending. 
Bonds,  with  surety,  were  given  for  the  performance  of  the  award. 
An  award  was  rendered  before  anv  release  had  been  made,  and  it 
was  said  that  the  sureties  were  not  liable  therefor,  even  though 
the  principal  had  waived  the  making  of  the  release.'  Where  a 
surety  became  responsible  for  the  rent  of  a  piano,  and  for  its  re- 
turn by  the  principal  upon  request,  and  the  owner  sold  the  piano 
to  the  principal,  taking  as  security  a  bill  of  exchange  on  England, 
with  the  understanding  that  if  the  bill  was  dishonored  the  sale 
should  be  void,  it  was  held  the  surety  was  discharged.'  If  a 
contractor  and  the  owner  of  a  building,  in  course  of  erection, 
without  the  consent  of  a  surety  for  the  contractor,  make  an  agree- 
ment by  which  the  building  is  to  be  built  one  story  higher  than 
originally  agreed,  the  surety  is  discharged.''  A  surety  signed 
a  bond  conditioned  for  the  payment  by  C  of  certain  sums  speci- 
fied in  a  deed.  By  the  terms  of  the  deed,  C  agreed  to  keep  a 
certain  mill  insured,  and  have  the  policy  of  insurance  assigned  to 
the  creditor  as  additional  security  for  the  payments  to  be  made 
by  0.  Afterwards,  as  the  result  of  an  arbitration  between  the 
creditor  and  C,  the  contract  was  changed  so  that  no  insurance  was 
provided  for,  and  it  was  held  the  surety  was  thereby  discharged." 
By  agreement  between  a  clerk  and  his  employer,  the  service  was 
terminable  at  one  month's  notice,  and  a  surety  became  bound  for 
the  clerk's  behavior.  Afterwards,  by  agreement  between  the 
clerk  and  employer,  the  service  was  made  terminable  at  three 
months'  notice,  and  it  was  held  the  surety  was  not  thereby  dis- 
charged.^ A  contract  provided  for  the  delivery  of  a  crop  of 
strawberries  as  they  should  ripen,  and  they  were  to  be  paid  for 
on  delivery.  A  surety  became  bound  for  the  performance  of  the 
contract  on  the  part  of  the  purchaser.  The  berries  were  delivered 
from  time  to  time  without  being  paid  for  on  delivery.  Held, 
this  was  not  such  a  change  of  the  contract  as  discharged  the 
surety.  The  seller  might  have  demanded  payment  for  each  parcel 
when  he  delivered  it,  but  was  not  obliged  to  do  so.* 

1  Burt  V.  McFadden,  58  111.  479.  "Titus  v.  Durkee,  12  Up.  Can.  C.  P. 

5  O'Neill  V.  Carter,  9  Up.  Can.  Q.  B.  R.  367. 

R.  470.  ^  Sanderson  v.  Aston,  Law  Rep.  8 

3  Zimmerman  v.  Judah,  13  Ind.  286;  Exch.  73. 

Judah  V.  Zimmerman,  22  Ind.  388.  *  Kirby  v.  Studebaker,  15  Ind.  45. 


CHAPTER  XYI. 


OF  THE  DISCHARGE  OF  THE  SURETY  OR  GUARANTOR  BY 
MISREPRESENTATION,  CONCEALMENT,  FRAUD,  OR  NON- 
COMPLIANCE WITH  THE  TERMS  UPON  WHICH  HE  BECAME 
BOUND. 


Section. 

Surety  discharo'ed  if  creditor  mis- 
represent the  transaction  to  him  348 

When  surety  discharged  if  condi- 
tion that  another  shall  sign  is 
not  complied  with     .         .         .  349 

If  the  condition  upon  which  the 
surety  signs  is  not  compKed 
with,  he  is  not  bound        .         .  350 

Misrepresentation  of  unexecuted 
intention  does  not  discharge 
surety 351 

When  parol  evidence  competent  to 
show  terms  upon  which  surety 
signed 352 

Surety  not  discharged  by  fraud  of 
principal,  unless  creditor  have 
notice 353 

Surety  on  note  not  discharged  if 
creditor  have  no  notice  of  con- 
dition on  which  he  signed         .  354 

When  surety  on  bond  liable,  if 
condition  that  another  shall 
sign  not  complied  with     .        .  355 

When  surety  who  signs  instru- 
ment in  blank  bound  by  act  of 
principal  in  filling  blank  .         .  356 

When  name  of  surety  in  body  of 
obligation  is  notice  to  obligee  of 
condition  that  he  should  sign   .  357 

When  surety  discharged  because 


Section, 
the  signature  of  another  surety 
is  forged   .....  358 

When  failure  of  consideration  to 
principal  is  a  defense  for  surety  359 

When  surety  not  discharged  by 
false  representation  of  third  per- 
son   .        .        .        ...        .  360 

Miscellaneous  cases  holding  sure- 
ty discharged  by  non-compli- 
ance with  the  terms  upon  which 
he  signed 361 

When  surety  discharged  by  fraud. 
Other  cases        ....  362 

Estoppel.  Usury.  Other  cases, 
holding  surety  not  discharged    363 

Miscellaneous  cases,  holding  sure- 
ty not  discharged      .         .         .  364 

When  surety  discharged  by  con- 
cealment of  material  facts    365,  366 

When  surety  discharged  by  con- 
cealment of  fact  that  principal 
is  a  defaulter     ....  367 

Continuing  servant  in  employ  af- 
ter dishonesty  discovered.  Neg- 
ligence in  discovering  default. 
Notice  of  default       .        .        .368 

When  surety  of  employe  of  corpo- 
ration not  discharged  because 
by-laws  of  corporation  not  com- 
plied with  ....  369 


§  348.  Surety  discharged  if  creditor  misrepresent  the  transac- 
tion to  him. — If  aii}^  material  part  of  the  transaction  between 
tlie  creditor  and  his  debtor,  is  by  the  creditor,  or  with  his  knowl- 
edge or  consent,  misrepresented  to  the  surety,  the  misrepresenta- 

(468) 


MISREPRESENTATION    BY    CREDITOR.  469 

tion  being  siicli  that  but  for  tlie  same  having  been  made,  either 
the  suretjshij)  would  not  have  been  entered  into  at  all,  or  being 
entered  into,  the  extent  of  the  surety's  liability  might  be  thereby 
increased,  the  surety  is  in  such  case  generally  held  to  be  not 
bound  by  his  obligation.'  Thus,  a  forthcoming  bond  recited  that 
the  property  had  been  levied  on  and  appraised  according  to  law, 
when  it  had  not,  in  fact,  been  appraised  according  to  law.  This 
was  known  to  the  creditor,  but  not  to  the  surety,  and  it  was  held 
it  was  a  sufficient  fraud  on  the  surety  to  avoid  the  bond  as  to 
him.^  A  retiring  partner,  in  order  to  induce  a  surety  to  indem- 
nify him  against  the  partnership  debts,  represented  to  him  thai 
they  did  not  amount  to  over  $500,  when  the}'' were  in  fact  $1,500. 
and  it  was  held  the  surety  was  not  bound.'  It  has  been  held  that 
a  guarantor  that  a  note  "  is  good  "  may  show  as  a  defense  that. 
the  creditor  misrepresented  the  legal  eifect  of  the  words  to  him, 
upon  the  principle  that  if  one  of  the  parties  to  a  contract  is  ig- 
norant of  a  matter  of  law  involved  therein,  and  the  other  knows 
him  to  be  so,  and  takes  advantage  of  the  circumstance,  he  U 
guilty  of  a  fraud,  against  which  the  court  will  relieve.*  A  party 
having  a  mill  for  sale,  made  false  representations  concerning  th« 
same  to  the  purchaser  and  his  surety,  upon  which  they  relied. 
Held,  the  falsity  of  the  representations  were  a  good  defense  to 
the  surety,  even  though  the  purchaser  had  not  rescinded  the  con- 
tract. The  princij^al  was  less  able  to  perform  his  contract  by 
reason  of  the  falsity  of  the  representations,  and  the  surety  was 
thereby  discharged.^  If  a  surety  is  induced  to  execute  a  bond, 
upon  a  false  representation  by  the  obligee  that  the  principal  is 
not  indebted  to  him,  the  surety  is  not  bound.'  A  covenanted  to 
convey  to  B  certain  property  free  from  incumbrances,  except 
such  as  were  set  forth  in  a  schedule,  in  consideration  of  B  and-C, 
a  surety,  doing  certain  things.  It  turned  out  that  the  property 
was  charged  with  another  incumbrance  which  A  had  forgotten, 
and  of  the  existence  of  which  C  had  no  knowledge,  and  it  was 
held  that  C  was  not  bound.''  A  note  being  due,  the  creditor  re- 
fused to  extend  the  time  of  payment,  but  said  that  if  a  certain 

^  Municipal  Council  of  Middlesex  v.  *  Cooke  v.  Nathan,  16  Barb.  (N.  Y.) 

Peters,  9  Up.  Can.  C.  P.  R.  205.  342. 

^Frisch   v.   Miller,    5    Pa.  St.   310.  ^Mendelson    v.    Stout,    5  Jones   & 

See,  also.  State  v.  Dunn,   11  La.  An.  Spen.  (N.Y.)  408. 

549.  *  Blest  v.  Brown,  3  GifFard,  450. 

■Tishburn  v.  Jones,  37  Ind.  119.  ">  Willis  v.  Willis,  17  Simons,  218. 


470  DISCHAKGE   OF    SURETY   BY   FRAUD,    ETC. 

person  would,  as  surety,  indorse,  and  the  principals  would 
sign  a  new  note,  payable  to  a  bank,  he  would  also  indorse 
it  and  get  the  money  from  the  bank,  and  the  extension  would 
thus  be  procured.  Such  a  note  was  so  signed  and  indorsed, 
but  the  creditor  did  not  indorse  nor  negotiate  it,  but  sued  it  him- 
self, the  above  being  merely  a  scheme  to  get  the  surety  to  become 
liable.  Held,  the  surety  was  not  liable.'  Where  one  is  induced 
to  sign  a  note  as  surety,  by  the  representation  of  the  creditor  that 
the  note  is  to  be  used  in  payment  for  goods  to  be  furnished  by 
the  creditor  to  the  principal,  and  the  note  is  used  to  pay  a  pre-ex- 
isting debt  of  the  principal  to  the  creditor,  the  person  so  signing 
is  not  bound  as  surety.''  A  creditor  represented  to  a  surety  that 
he  was  about  to  make  an  advance  of  300^.  in  cash  to  a  debtor,  to 
enable  him  to  satisfy  a  creditor  wlio  was  pressing  for  payment, 
when  in  fact  he  was  the  creditor  who  desired  payment,  and  cred- 
ited most  of  the  sum  to  the  principal.  Held,  the  surety  was  not 
discharged,  because  the  misrepresentation  did  not  amount  to  a 
fraud  on  him.^  Certain  corn  factors  supplied  flour  on  credit  to  a 
baker,  upon  his  executing  to  them,  with  surety,  a  bond,  the  con- 
dition of  which,  after  reciting  that  the  baker  had  entered  into  a 
contract  for  the  supply  of  bread  to  the  army,  was  that  the  bond 
should  be  void  if  the  baker  should  deliver  to  the  corn  factor  his 
bills  on  the  government  as  he  drew  them,  and  if  he  and  the  surety 
should  make  good  the  amounts  to  become  due  the  corn  factors. 
The  corn  factors  supplied  flour,  but  not  of  the  quality  specified 
in  the  government  contract,  which  was  vacated  on  that  account. 
Held,  the  corn  factors  could  not,  as  against  the  surety,  allege  ig- 
norance of  the  terms  of  tlie  contract,  and  that  the  surety  was  dis- 
charged. The  contract  being  referred  to  in  the  bond,  it  was  the 
same  as  if  the  corn  factors  had  represented  to  the  surety  that  they 
would  supply  such  flour  as  the  contract  called  for." 

§  849.  When  surety  discharged  if  condition  that  another 
shall  sign  is  not  complied  with. — If  tlie  surety  signs  the  obli- 
gation upon  the  condition  that  another  shall  also  sign  it  as  surety 
before  it  shall  be  binding  on  him,  and  this  condition  is  agreed  to 
by  the  creditor,  or  is  known  to  him  when  he  takes  the  obligation, 
the  surety  is  not  generally  liable  unless  the  condition  is  complied 

*  Armstrong  v   Cook,  30  Ind.  22.  ^  Pledge  v.  Buss,  Johnson  (Eng.  Ch.) 

^  Ham  V.  Greve,  34  Ind.  18.  663. 

*  Blest  V.  Brown,  4  De  Gex,  Fish  &  Jones,  367. 


WHEN    CONDITION    NOT    COMPLIED    WITH.  471 

with.'  But  where  a  principal  was  induced  to  sign  a  note  by  the 
false  representation  of  the  payee,  that  he  would  get  a  certain 
party  to  sign  it  as  surety,  it  was  held  that  this  was  no  defense  for 
the  principal,  because  the  princii^al  would  in  no  event  have  a 
right  to  look  to  the  surety  for  contribution,  and  his  liability  was 
not  altered  by  the  fact  that  no  surety  M^as  obtained.^  The  officers 
authorized  to  accept  a  sheriff's  bond,  agreed  to  accept  certain  par- 
ties who  signed  it,  and  one  H,  as  sureties.  Those  who  signed 
executed  the  bond  in  blank,  and  gave  it  to  the  sheriff  to  get  the 
signature  of  H,  but  IT  did  not  sign  it,  and  it  was  delivered  and 
accepted  without  his  signature.  It  did  not  appear  that  the  sure- 
ties told  the  officers  that  they  would  not  be  bound  unless  II  signed, 
but  simply  that  tlie  officers  agreed  to  accept  them  and  H.  Held, 
the  sureties  were  liable  on  the  bond.^ 

§  350.  If  the  condition  upon  which  the  surety  signs  is  not 
complied  with,  he  is  not  bound. — It  is  a  general  rule,  that  if 
the  condition,  known  to  the  creditor,  upon  which  the  surety  agrees 
to  become  bound,  is  not  complied  with,  the  surety  is  discharged. 
"Where  a  creditor  had  obtained  judgment  against  the  principal 
and  issued  execution  thereon,  and  certain  sureties  were  induced 
to.  sign  a  note  for  the  amount,  by  the  promise  "of  the  creditor 
that  he  would  assign  the  execution  to  them,  and  he  did  not  as- 
sign it,  but  brought  suit  on  the  note,  it  was  held  the  sureties 

'Cowan  t\  Baird,  77  Nor.  Car.  201;  it  was  held  that  where  a  note  was 

Clements  v.  Cassilly,  4  La.  An.  380;  signed  and  left  with  the  payee,  upon 

Crawford  y.  Foster,  6  Ga.  202;  Miller  i;.  condition  that  it  shoald  not  be  valid 

Stem,  12  Pa.  St.  383;  HiU  v.  Sweetser,  unless  another  signed  it  as  surety,  the 

5  New  Hamp.  168;  United  States  v.  surety  was    bound,   notwithstanding 

Hammond,   4   Bissell,   283;    Read  v.  the  condition  was  not  complied  with; 

McLemore,    34    Miss.   110;    King  v.  on  the  ground  that  evidence  of  such 

Smith,  2  Leigh  (Va.)   157;  Smith  v.  an  agreement  contradicted  the  note, 

Doak,  3  Texas,   215;  Dunn?;.  Smith,  and  that  an  obUgation  could  not  be 

12  Smedes   &  Mar.  (Miss.)  602;   Goff"  delivered  to  the  obligee  as  an  escrow. 

r.  Bankston,  35  Miss,   518;  Jordin  w.  But  where  there  was  su  h  an  agree- 

Loftin,  13  Ala.  547  ;  Bivins  v.  Helsey,  ment,  and  the  bond  was  not  to  be  de- 

4  Met.  (Ky.)  78;  Evans  i\  Bremridge,  livered  to  the  obligee  till  another  had 

2  Kay  &  Johns.  174;  Evans  v.  Brem-  signed^as  surety,  the  same  court  held 

ridge,  8  De  Gex,  Macn.  k  Gor.  100;  that  the  surety  was  not  liable  unless 

CofFman  t'.  Wilson,  2  Met.  (Ky.)542;  such  other   surety  signed;  Garvin  v. 

Corporation  of  Huron  v.  Armstrong,  Mobley,  1  Bush  (Ky.)  48. 

27  Up.  Can.  Q.  B.  R.  533;  contra.  Moss  » Beesley  v.  Hamilton,  50  111.  88. 

V.  Riddle,  5  Cranch,  351.     In  Hubble  *  Police  Jury  v.  Haw.  1  La.  (Miller) 

V.  Murphy,  1  Duvall  (Ky.)  278,  and  in  41. 
Murphy «;.  Hubble.  2  Duvall  (Ky.)247, 


472  DISCIIAKGE    or    SURETY    BY    FRAUD,    ETC. 

were  discliars-ed.*  A  and  B  as^reed,  that  B  should  make  and  de- 
liver  to  A  certain  quantities  of  brick,  for  which  .$500  were  to  be 
paid  by  A  to  B  on  a  certain  day,  as  a  condition  precedent  to  the 
delivery  of  the  brick,  and  C  became  surety  that  B  would  perform 
his  contract.  A  by  B's  consent  f^xiled  to  pay  the  $500  at  the  day 
specified,  but  afterwards  paid  it  to  B,  who  accepted  it.  Held,  the 
surety  was  discharged.^  A  guaranties  to  B  the  debt  of  C,  upon 
condition  "  that  no  application  shall  be  made  to  A  on  B's  part, 
for  the  amount  guarantied  or  any  portion  thereof,  but  on  the  fail- 
ure of  B's  utmost  efforts  and  legal  proceedings  to  obtain  the  same 
from  C."  No  jDroceedings  were  had  against  C  till  four  years 
after  the  guaranty  was  given,  and  it  was  held  the  guarantor  was 
discharged.^  A  and  B  entered  into  covenants  to  be  performed  by 
each,  by  which  A  contracted  to  purchase  and  deliver  to  B  one 
thousand  sheep,  which  B  agreed  to  receive  and  pay  for  at  a  cer- 
tain j)rice.  The  contract,  which  was  within  the  statute  of  frauds, 
was  signed  by  A  and  by  two  others  as  his  sureties,  but  not  by  B, 
and  it  was  lield  the  sureties  were  discharged.*  A  purchased  land 
from  B  and  gave  a  bond  for  part  of  the  purchase  money,  with  C 
as  surety'-,  and  also  gave  B  a  mortgage  on  the  land  to  secure 
the  payment  of  the  bond.  Before  C  signed,  B  impressed  him 
with  the  idea,  if  he  did  not  tell  him,  that  the  sum  for  which 
he  became  surety,  would  be  paid  by  the  cutting  and  selling  of 
timber  from  the  land.  A  commenced  to  cut  timber  from  the 
land,  and  B  procured  an  injunction  against  his  so  doing.  Held, 
the  surety  was  thereby  discharged.^  A  agreed  to  become  surety 
for  B  in  a  joint  and  several  bond  to  C,  and  B  was  to  give  a  counter 
bond  of  indemnity  to  A.  The  bond  to  0  was  executed  by  A 
only,  but  B  executed  the  counter  bond  to  A.  Held,  A  was  re- 
leased, as  he  had  only  agreed  to  become  bound  in  a  bond  which  B 
also  should  execute.^  But  it  has  been  held,  that  a  surety  who 
executed  a  bond  on  the  faith  of  its  being  executed  by  the  princi- 
pal, also,  cannot  be  released  from  his  obligation  on  the  ground 

'  Jones  V.  Keer,  30  Ga.  93.  ley,  12  .T.  Scott  (N.  S.)  799;  see,  also, 

"^  Cunning-ham  v.  Wrenn,  23  111.  64.  on  this  subject,  Sheldon  v.  Reynolds. 

3  IIoll  V.  Hadley,  4  Nevile  &  Man.  515.  14  La.  An.  703. 

Holding'  that  a  surety  is  discharged  ^  Swope  v.  Forney,  17  Ind.  385. 

where  creditor  fails  to   perform   his  ^  Lynchp.  Colegate,  2Harr.  &  Johns. 

agreement  that  he  will,  within  three  (Md.)  34. 

years,  enforce  payment  of  a  note  due  ^  Bonser  v.  Cox,  4  Beavan,  379. 

on  demand,  see  Lawrence  v.  Walms- 


MISKEPEESENTATION    OF    UNEXECUTED    INTENTION.  473 

that  the  i^rincipal  has  never  executed  it,  if  the  principal  has 
executed  another  instrument  concerning  the  same  matter,  on 
which  the  surety  (having  paid  and  been  subrogated  to  the  same) 
may  sue  him  and  rank  as  a  specialty  creditor.^  A  creditor,  who 
obtains  a  guaranty  upon  the  representation  that  he  is  accepting 
a  composition  from  his  debtor,  when  in  fact  he  is  being  paid  in 
full,  cannot,  on  grounds  of  public  policy,  hold  the  guarantor.^ 
A  composition  agreement,  signed  by  certain  creditors,  contained 
a  condition  that  it  should  not  be  binding,  unless  it  was  signed  by 
all  the  creditors.  Composition  notes  were,  under  the  agreement, 
delivered  to  the  plaintiif,  indorsed  by  the  defendant  as  surety. 
The  agreement  was  not  signed  by  all  the  creditors,  but  that  fact 
was  not  known  to  the  defendant  when  he  signed  the  notes.  Held, 
the  agreement  and  the  notes  were  a  part  of  one  transaction,  and 
the  surety  was  not  liable  on  his  indorsement.^ 

§  351.  Misrepresentation  of  unexecuted  intention,  does  not 
discharge  surety. — A  distinction  has  been  taken  between  a  mis- 
representation of  an  existing  fact,  and  of  an  unexecuted  inten- 
tion, and  the  latter  has  been  held  not  to  be  such  a  fraud  as  will  dis- 
charge a  surety.  A  retiring  partner  represented  to  a  surety  that 
if  he  would  become  responsible  to  him  for  the  payment  of  the  part- 
nership debts,  he  would  forever  retire  from  the  business,  and  in  no 
manner  compete  with  the  surety  and  the  remaining  partner,  who 
were  going  into  the  same  business;  but  immediately  after  the 
surety  became  bound,  the  retiring  partner  entered  into  the  same 
business.  Relying  upon  the  above  distinction,  the  court  held  the 
surety  bound,  notwithstanding  the  representations  were  made  for 
the  purpose  of  deceiving  the  surety.^  Where  a  guaranty  was  for 
the  honesty  of  a  tax  collector,  and  the  misrepresentation  relied 
upon  to  discharge  the  guarantor,  was  that  the  collector's  accounts 
would  be  examined  every  week,  and   such  had  been  the  course 

^  Cooper  V.  Evans,  Law  Rep.  4  Eq.  from  those  stipulated  by  him,  see  Lov- 

Ca^>.  45.  ett  v.  Adams,  3  AVend.  380.     Holding' 

*  Clark  V.  Ritchie,  11  Grant's  Ch.  R.  surety  estopped  under  certain  circnm- 

499;  to  similar  effect,    Pendlebury  v.  stances  from  setting  up  that  the  bond 

Walker,  4  Younge   &,    Coll.    (Exch.)  was  delivered  contrary   to  the  agreed 

424.  condition,    see  Haman  v.   Howe,    27 

3  Doughty  V.  Savage,  28  Ct.  146.  To  Gratt.  (Va.)  676. 

contrary  effect,    see    Whittemore    v.  *  Gage  <?.  Lewis,  68  lU.  604.     Recog- 

Obear,  58  Mo.  280.     Holding  a  surety  nizing  the  same  distinction,  see  Mu- 

not  bound  when  the  obligation  signed  nicipal  Council  of  Middlesex  v.  Peters, 

by  Irim  is  delivered  on  terms  different  9  Up.  Can.  C.  P.  R.  205. 


474:  DISCHARGE    OF    SURETY   BY   FRAUD,    ETC. 

pursued,  and  it  was  expected  it  would  be,  but  there  was  a  failure 
in  that  regard,  the  above  distinction  was  recognized,  and  the 
guarantor  held  liable.'  An  application  for  a  policy  of  guaranty 
for  the  acts  of  the  secretary  of  a  literary  institution,  contained 
the  following  interrogatory  and  answer:  State  "  the  checks 
which  will  be  used  to  secure  accuracy  in  his  accounts,  and  when 
and  how  often  they  will  be  balanced  and  closed?"  Answer: 
"  Examined  by  finance  committee  every  fortnight."  A  loss  was 
occasioned  by  neglect  to  examine  the  accounts  in  the  manner 
stated.  Held,  the  sureties  were  nevertheless  liable.  The  court 
said,  that  in  view  of  all  the  circumstances,  the  answer  was  not 
expected  to  be  on  the  part  of  the  guarantor  or  expected  to  be  on 
the  part  of  the  person  to  whom  the  guaranty  was  given,  "  any- 
thing more  tlian  a  declaration  of  the  course  intended  to  be  pur- 
sued ;  and  if  the  answer  was  made  hona  fide  and  honestly,"  the 
guarantor  was  not  discharged.^ 

§  352.  Wlien  parol  evidence  competent  to  sho'w  terms  upon 
which  surety  signed, — Parol  evidence  of  what  took  place  at  or 
before  the  time  a  written  instrument,  complete  in  itself,  was 
signed  will,  it  seems,  be  received  to  control  the  operation  of 
the  provisions  of  the  instrument  when  there  was  fraud  in 
obtaining  it,  when  a  fraudulent  use  is  sought  to  be  made  of 
it,  and  when  application  is  made  to  a  court  of  equity  to  enforce 
such  instrument,  in  which  case  the  adverse  party  is  allowed 
to  show  by  parol  evidence  that  the  instrument  does  not  contain 
the  true  agreement  of  the  j)arties,  or  the  whole  of  it.^  A  sure- 
ty may  generally  show  by  parol  evidence  the  consideration 
upon  which  he  signed  the  obligation,  and  that  such  consid- 
eration has  failed,  without  contravening  the  rule  that  parol 
contemporaneous  evidence  will  not  be  received  to  aifect  the  oper- 
ation of  a  written  instrument.  Thus,  at  the  time  a  surety  execu- 
ted a  note  for  $300  to  the  creditor,  he  was  already  surety  on  an- 
other note  for  the  principal  for  $233,  payable  to  a  third  person, 
and  the  creditor,  in  consideration  that  he  would  sign  the  $300 

'Towle  V.   National  Guardian  As-  Taylor  r.  Gilman,  25  Vt.  411;  Oliver 

surance  Society,  3  Giffard,  42.  v.  Oliver,  4  Rawle  (Pa.)  141;  Coger's 

''Benham  v.  Assurance  Co.   7  Wels.  Exrs.  v.  McGee,  2  Bibb  (Ky.)321;  Sny- 

Hurl.  &  Gor.  744,  per  Pollock,  C.  B.  der  v.   Klose,  19  Pa.  St.  235;   Wood 

^Dwight  V.  Porueioy,  17  Mass.  308;  v.  Dwarris,  11  Excli.  493;  Cathcarfc  r. 

Phyfe  V.  Warden.  2  Edwards  Ch.  47;  Robinson,  5  Peters,  264;  Bestir.  Stovr, 

Tyson  v.  Passmore,   2    Pa.  St.    122;  2  Sandf.  Ch.  298. 


PAROL  EVIDENCE  TO  SHOW  TERMS  ON  WHICH  SURETY  SIGNED.    475 

note,  verbally  promised  to  procure  his  release  from  the  note  for 
$233,  which  he  failed  to  do.  Held,  this  agreement  might  be 
shown  by  parol  evidence,  and  that  the  snretj  was  discharged. 
The  court  said:  "We  perceive  no  valid  reason  why  the  engage- 
ment of  the  surety,  who  as  such  executes  a  written  contract,  may 
not  be  founded  upon  a  consideration  variant  from  that  which  in- 
duced its  execution  by  the  principal.  And  if,  as  in  the  case  at  bar, 
such  consideration  be  a  condition  subsequent,  to  be  performed  by 
the  creditor,  his  failure  to  perform  it  would  evidently  ojjerate  as  a 
fraud  upon  the  surety,  and  upon  that  ground  release  him  from  all 
liability  upon  his  engagement.  *  And  it  is  plainly  competent 
for  the  surety  to  set  up  and  prove  such  failure  of  consideration, 
because  it  has  often  been  adjudged  that  such  defense  is  not  in 
conflict  with  the  legal  effect  of  the  contract."'  In  consideration 
that  a  surety  would  sign  a  note,  the  creditor  at  that  time  verbally 
promised  him  that  the  note  should  be  secured  by  a  chattel  mort- 
gage, which  secured  an  old  note.  The  creditor  afterwards  released 
the  chattel  mortgage,  and  it  was  held  that  the  parol  agreement 
might  be  shown,  and  that  the  surety  was  discharged.  The  court 
said:  "  It  was  competent  for  the  parties  to  make  the  contract  al- 
leged, and  if  it  formed  the  only  consideration  for  the  making  of 
the  note  by  the  *  (surety),  parol  evidence  is  admissible  to 
prove  that  fact,  and  also  that  the  consideration  has  failed  when 
the  action  is  by  a  holder  with  notice.  Such  evidence  is  no  in- 
fringement of  the  rule  before  referred  to,  excluding  parol  evi- 
dence to  vary  or  contradict  a  written  contract." "  It  has  been  held 
that  the  indorser  of  a  note  may  prove  by  parol  that  he  indorsed 
it  merely  as  surety,  and  that  the  agreement,  when  he  indorsed  it, 
was  that  it  was  to  be  paid  out  of  claims  in  his  hands  due  the 
principals.  In  such  a  case,  the  court  said:  "  The  evidence  offered 
was  neither  to  contradict  nor  to  explain  a  written  instrument, 
but  to  prove  a  collateral  fact  or  agreement  in  relation  to  it."* 
The  payee  of  a  promissory  note  -s^erbally  promised  the  surety,  as 

^  Campbell  v.  Gates,  17  Ind.  126,  per  competent,  see  Matheson  v.  Jones,  30 

Davison,  J.  Ga.  306;  Thomas  r.  Turscott,  53  Barb. 

2  Post  V.  Robbins.  35  Iowa,  208,  per  (N.Y.)  200;  Stewart  v.  Davis'  Exr.  18 

Miller,  J.  Ind.  74;  Briggs  v.  Law,  4  Johns.  Ch. 

^Dwight  V.  Linton,  3  Robinson  (La.)  22;  Watts  r.  Shuttleworth,  5  Hurl.  & 

57,  per  Morphy,  J.     For  other  cases,  Nor.  235.     Holding  that  such  evidence 

holding  parol  evidence  of  the  agree-  must  be  clear,  see  Tiffany  v.  Crawford, 

ment  upon  which  the  surety  signed,  1  McCarter  (N.  J.)  278. 


476  DISCHARGE    OF    SUKKTY    DY    FRAUD,    ETC. 

ail  inducenuMit  for  liini  to  sign  it,  that  as  soon  as  tlie  note  became 
due,  he  would  im mediately  proceed  to  collect  it  from  the  princi- 
pal. The  note  became  due  and  remained  so  a  year,  and  the  cred- 
itor neither  sued  the  jirincij^al  nor  notified  the  surety,  and  the 
principal  became  insolvent.  Held,  the  surety  was  discharged. 
The  court  said  that  the  creditor,  by  his  assurances  to  the  surety, 
"  has  lulled  him  into  a  false  security,  has  induced  him  to  omit 
to  do  what  he  would  otherwise  have  done,  viz.:  pay  the  debt  and 
secure  himself  by  attaching  '•^'  (the  principal's)  property,  or 
otherwise  obtaining  security,  and  has  thus  subjected  him  to  the 
loss  of  the  whole  debt."  He  is  equitably  estopped  to  claim  any- 
thing from  the  surety.'  But  where  a  surety  signed  a  note  in 
consideration  of  a  parol  contemporaneous  agreement  by  the  payee, 
that  he  would  continue  the  principal  in  his  employ  till  he  could, 
b}'  his  earnings,  pay  the  note,  it  was  held  that  the  surety  could 
not  show  a  breach  of  this  agreement  as  a  defense  to  the  note,  on 
the  ground  that  the  verbal  agreement  varied  the  legal  effect  of 
the  note."  In  an  action  against  a  surety  on  a  lease,  it  has  been 
held  not  competent  for  him  to  show  a  verbal  agreement  contem- 
poraneous with  the  execution  of  the  lease,  that  it  might  be  sur- 
rendered at  the  will  of  the  tenant,  for  this  would  be  to  change  a 
lease  for  a  definite  time  into  one  at  will.^ 

§  353.  Surety  not  discharged  by  fraud  of  principal,  unless 
creditor  have  notice. — If  the  principal,  by  fraud,  induces  the 
surety  to  become  bound,  but  tlie  obligee  has  no  notice  thereof,  such 
fraud  will,  as  a  general  rule,  be  no  defense  to  the  surety.*  Where 
the  principal  represented  to  the  surety  that  he  could  and  would 
use  the  money  to  be  obtained  on  a  note  profitably  in  a  business 
operation,  and  the  principal  delivered  the  note  to  the  payee  in 
payment  of  an  existing  debt,  the  payee  having  no  knowledge  of 
the  representations  made  to  the  surety,  it  was  held  that  the  surety 

'  Hickok  V.  Farmers  &  Mechanics  ^  Brady  «>.  Peiper,  1  Hilton  (N.  Y.) 
Bank,  35  Vt.  476,  per  Aldis,  J.  Hold-  61.  To  similar  effect,  see  Brush  v.  Ra- 
ing  that  parol  evidence  of  a  contem-  ney,  34  Ind.  416;  Weare  v.  Sawyer,  44 
poraneous  agreement  to  diligently  New  Hamp.  198. 
prosecute  the  principal  in  a  note  can-  *  Coleman  t?.  Bean,  1  Abbott's  Rep. 
not  be  given,  see  Huey  t?.  Pinney,  5  Om.  Cas.  (N.  Y.)  394;  Graves  jj.  Tuck- 
Minn.  310;  First  Natl.  Bank,  Mon-  er,  10  Sraedes  &  Mar.  (Miss.)  9;  Ladd 
mouth  V.  Whitman,  66  111.  831;  v.  Board  of  Trustees,  80  111.  233; 
Thompson  v.  Hall,  45  Barb.  (N.  Y.)  Griffith  v.  Reynolds,  4  Gratt.  (Va.) 
214.  46;  Western  N.  Y.    Life  Ins.  Co.  v. 

» Tucker  v.  Talbott,  15  Ind.  114.  CUnton,  66  New  York,  326. 


WHEN    CREDITOR    HAS    NO    NOTICE    OF    CONDITION.  4«  i 

could  not  avail  himself,  as  a  defense,  of  tlie  fraud  practiced  ujDon 
him  by  tlie  principal.^  Where  certain  parties  were  led  to  execute 
an  administration  bond  as  sureties  by  the  misrepresentation  of 
others,  it  was  held  to  be  no  defense  as  against  one  who  was  in  no 
way  connected  with  the  deception.^  A  being  about  to  purchase 
a  medical  practice  from  B,  told  him  he  could  get  C  to  be  his 
surety  for  300Z.,  and  A  finally  purchased  the  practice,  and  gave  B 
his  and  C*s  bond  for  300Z.,  and  gave  B  his  individual  bond  fur 
1251.  additional.  C  did  not  know  of  the  ffivino^  of  the  latter 
bond,  but  supposed  the  practice  was  sold  for  dOOl.:  Held,  if  A 
alone  practiced  the  deception  on.  C  it  did  not  discharge  him, 
but  if  B  participated  in  the  misrepresentation,  the  bond  was  void.^ 
§  354.  Surety  on  note  not  discharged  if  creditor  have  no  no- 
tice of  condition  on  -which  he  signed. — If  a  surety  executes  a 
negotiable  promissory  note,  and  leaves  it  w^ith  the  principal, 
upon  condition  that  the  principal  shall  get  another  to  sign 
it  before  it  is  delivered,  and  the  principal  delivers  it  to 
the  payee  without  complying  with  the  condition,  and  the 
payee  takes  it  without  any  notice  of  such  condition,  express 
or  implied,  the  surety  cannot  avail  himself  of  such  condition, 
and  is  liable  on  the  note.^  The  same  rule  holds  good  Avitli 
reference  to  any  other  condition  upon  which  a  surety  signs  such 
note,  and  of  which  a  honajide  holder  has  no  notice.  Thus,  where 
a  note  was  indorsed  by  a  surej;y  for  the  purpose  of  paying  another 
note  on  which  the  indorser  was  liable,  it  was  held  to  be  no  de- 
fense against  a  bona  fide  holder  without  notice  that  the  principal 
had  misapplied  the  proceeds  of  the  note.*  The  same  thing  was 
held,  where  the  guarantor  of  a  note  became  liable  upon  the  under- 
standing that  the  note  should  be  discounted  at  a  particular  bank, 
but  the  holder  had  no  notice  of  that  fact  when  he  took  the  note." 

iQuinn  v.   Hard,   43  Vt.   375.     In  81;  Deardorff  v.    Forseman,  24  Ind. 

Riley  z'.  Johnson,  8  Ohio,  526,  precise-  481;  Passumpsic  Bank  v.  Goss,  31  Vt. 

ly  the  opposite  was  held,  on  the  ground  315;  Smith  v.  Moberly.   10  B.  Mon. 

that  the  payee  having  taken  the  note  (Ky.)  266;  Dixon  v.  Dixon,  31  Vt.  450; 

for  a  precedent  debt,  was  not  a  bona  Ferrell  i'.  Hunter,  21  Mo.  436;  Findley 

fide  holder.  i.\  State  Bank,  6  Ala.   244.     Contra, 

^  Casoni  v.   Jerome,   58  New  York,  where  the  note  was  non-negotiable, 

315.  see  Ayres  v.  Miloiy,  53  Mo.  516. 

3  Spencer  v.  Handley,  5  Scott  (N.  R.)  ^  Stoddard  v.  Kimball,  4  Cush.  604; 

546.  Stoddard  v.  Kimball,  6  Cush.  469. 

*  Deardorff  v.  Foreman,  24  Ind.  481;  ^  Sweetser  v.  French,  2  Cush.  301). 

Merriam  v.  Rockwood,  47  New  Hamp. 


478  DISCHARGE   OF   SURETY    BY   FRAUD,    ETC, 

"Wliere  a  surety  signed  a  note  only  on  condition  that  the  princi- 
pal should  indemnify  him  by  mortgage  before  the  note  should  be 
delivered,  and  it  was  not  done,  it  was  held  that  this  was  no  de- 
fense against  a  hona  fide  holder  without  notice,  notwithstanding 
the  fiict  that  the  note  was  payable  to  A  or  bearer,  and  was  sold  to 
B.'  "Where  the  payee  of  a  promissory  note  filled  it  up  and  gave 
it  to  the  principal  to  obtain  the  name  of  a  surety  thereon,  and 
tlie  principal  applied  to  a  person  who  could  not  read  or  write,  and 
asked  him  to  sign  the  note  as  surety,  stating  to  him  that  it  was 
for  a  smaller  sum  than  that  expressed  in  the  note,  and  he  there- 
upon authorized  the  principal  to  sign  his  name  to  the  note,  with- 
out asking  that  it  be  read,  and  the  note  was  then  delivered  to  the 
payee,  who  had  no  notice  of  the  fraud,  it  was  held  the  surety  was 
liable.^  "Where  a  principal  falsely  represented  to  a'  surety  that 
the  creditor  would  take  a  note  for  one  half  the  debt  in  full  pay- 
ment thereof,  and  the  surety  signed  such  a  note,  and  it  was  de- 
livered to  the  creditor,  who  did  not  know  of  the  misrepresenta- 
tion, it  was  held,  the  surety  was  liable.^  A  was  principal  and  B 
and  C  sureties  in  a  note.  The  creditor  ao:reed  to  extend  the  time 
if  A  would  get  D  to  sign  the  note  in  place  of  B.  A  took  the  note 
to  D,  and  falsely  represented  to  him  that  C  had  agreed  to  remain 
on  the  note  if  D  would  sign  it  in  place  of  B.  The  name  of  B 
was  then  stricken  out,  and  D  signed  the  note,  relying  on  these 
representations.  Held,  C  was  disc^iarged,  and  A  and  D  were 
bound.  A  was  not  the  agent  of  the  creditor,  and  if  D  relied 
upon  his  representations,  he  must  suffer  by  it.* 

§  355.  "When  surety  on  bond  liable,  if  condition  that  another 
shall  sign  is  not  complied  with. — A  bond,  perfect  on  its  face, 
apparently  duly  executed  by  all  whose  names  appear  therein, 
purporting  to  be  signed,  sealed  and  delivered  by  the  several 
obligors,  and  actually  delivered  by  the  principal  without 
stipulation,  reservation  or  condition,  cannot  be  avoided  by 
the  sureties  upon  the  ground  that  they  signed  it  on  the  condition 
that  it  should  not  be  delivered  unless  it  should  be  executed  by 
other  persons  who  did  not  execute  it,  when  it  appears  that  the 
obligee  had  no  notice  of  such  condition,  and  nothing  to  put  him 
on  inquiry  as  to  the  manner  of  its  execution,  and  also,  that  he  has 

^  Gage  V.  Sharp,  24  Iowa,  15.  ■*  Farmers  &  Traders  Bank  v.  Lucas, 

« Craig  V.  Hobbs,  44  Ind.  363.  26  Ohio  St.  385. 

2  Booth  V.  Ston-s,  75  lU.  438. 


SUEETY    SIGNING    BLANK   INSTRUMENT.  479 

been  induced,  upon  the  faitli  of  such  bond,  to  act  to  liis  own  prej- 
udice.^ The  reason  for  this  course  of  decision  has  been  thus  well 
expressed :  "  Tlie  principal  obligor,  naturally  the  chief  actor,  pre- 
sents *  (the  bond)  for  the  acceptance  of  the  obligee;  the  in- 
strument is  in  the  regular  course  of  delivery;  the  appearance 
which  the  signers  of  it  have  created  by  their  acts,  is  that  of  an 
absolute  authority  in  the  principal  obligor  to  deliver  the  instru- 
ment as,  and  for  what,  it  purports  on  its  face  to  be,  the  deed  of 
those  who  have  affixed  their  names  and  seals  to  it.  *  We  regard 
the  case  as  one  where  the  surety  must  run  the  risk  of  the  fraud 
of  his  own  agent.  We  deem  it  the  duty  of  the  signer  of  an  in- 
strument under  such  circumstances,  to  see  to  it  that  the  author- 
ity he  has  delegated  is  not  abused,  and  that  it  is  not  just  nor  rea- 
sonable to  allow  him  to  take  advantage  of  its  abuse  to  defeat  his 
obligation."  ^ 

§  356.  When  surety,  who  signs  instrument  in  blank,  bound 
by  act  of  principal  in  filling  blank. — A  surety  who  Signs  a  blank 
instrument,  and  entrusts  it  to  his  principal,  is  generally  bound  to 
one  w^ho  takes  it  without  notice,  for  anything  with  which  the  prin- 
cipal may  fill  the  blank.  Thus,  a  party  signed  a  blank  appeal 
bond,  with  the  understanding  that  it  should  only  be  filled  up  so 
as  to  cover  the  costs  of  the  appeal,  but  without  his  knowledge  it 
was  filled  up  so  as  to  cover  the  debt  as  well  as  the  costs.  Held, 
tlie  surety  was  bound  by  the  bond  as  it  read,  unless  the  obligee 
w^as  cognizant  of  the  fraud.'  So,  where  certain  sureties  signed  a 
note,  blank  as  to  date  and  amount,  and  delivered  it  to  the  princi- 
pal, and  he  added  seals  to  the  names  of  the  sureties  and  filled  the 
blank  with  a  much  larg-er  sum  than  he  had  ao;reed  with  the  sure- 

'  State  V.  Pepper,  31  Ind.  76,  over-  2  Met.  (Ky.)  60S;  see,   also,  on  this 

ruling  Pepper  v.  The  State,  22   Ind.  subject,   Canal    and  Banking  Co.   v. 

399;  Dair  v.  United  States,  16  Wallace,  Brown,  4  La.  An.  545. 
1;  Webb  r.  Baird,  27  Ind.  368;  Nash  *  Smith  v.  Peoria  County,  59  HI.  412, 

r.  Fugate,  24  Gratt.  (Va.)  202;  State  per  Sheldon,  J.     Holding  that  notice 

V.  Garton  32   Ind.  1;  York  Co.  M.  F.  that  he  will  not  be  bound  by  a  bond 

Ins.  Co.  V.  Brooks,  '51  Me.  506;  Hunti?.  unless  others  sign  it,  given  by  a  surety 

The  State,  53   Ind.  321 ;  Readfield  v.  to  the  maj'or  of  a  city,  who  is  also 

Shaver,  50  Me.  36;  Gwyn  v.  Patterson,  surety  on  the- bond,  will  not  avail  the 

72  Nor.  Car.  189;  State  v.  Peck,  53  surety  giving  the  notice;  see  Steven- 

Me.  284;  Graves  v.  Tucker,  10  Smedes  son  r.  Bay  City,  26  Mich.  44. 
&     Mar.     (Miss.)     9;     Whitaker   v.  ^  Chalaron?\  McFarlane,  5  La.  (Cur- 

Crutcher,  5  Bush  (Ky  )  621;  State  r.  ry)  227.    To  similar  eftect,  see  McCor- 

Potter,  63  Mo.  212;   Millett  r.  Parker,  mick  i\  Bay  City,  23  Mich.  457. 


4S0  DISCIIAKGE   OF   SURETY    BY    FRAUD,    ETC, 

ties,  and  delivered  it  to  the  payee,  who  took  it  without  notice,  it 
was  held  the  sureties  were  liable  for  the  note,  as  the  payee  took  it.' 
A  blank  note  with  $5,000  inserted  at  the  top  of  the  paper,  and 
signed  by  a  firm  and  two  sureties,  and  by  one  of  the  firm  placed 
in  the  hands  of  a  factor  as  collateral  security  for  acceptances  of 
drafts  to  be  drawn  on  him  by  the  firm,  and  aftei-wards  filled  up  in 
good  faith  by  the  factor,  in  accordance  with  his  instructions,  with 
the  sum  of  $5,000,  as  agreed  upon  at  the  time  the  note  was  left 
with  him,  was  held  to  be  binding  on  the  sureties  thereon."  AYhere 
a  surety  by  parol  authorized  the  principal  to  fill  certain  blanks  in 
a  bond,  and  afterwards  revoked  the  authority,  and  the  principal 
afterwards  filled  the  blanks  in  the  obligee's  presence,  it  was  held 
the  surety  was  not  bound,  even  though  the  obligee  did  not  know 
that  the  authority  had  been  revoked.^ 

^  357.  "When  name  of  surety  in  body  of  obligation  is  notice 
to  obligee  of  condition  that  he  should  sign. — If  a  surety  signs 
an  obligation,  in  the  body  of  which  another  is  also  named  as 
surety,  upon  condition  that  he  shall  not  be  bound  unless  such 
other  also  signs  and  delivers  the  bond  to  the  principal,  who  de- 
livers it  to  the  obligee  without  complying  with  the  condition,  the 
surety  is  not  usually  bound.  The  fact  that  the  instrument  is  not 
executed  by  all  those  named  in  it  as  obligors,  is  sufiicient  to  put 
the  obligee  upon  inquiry,  and  charge  him  with  notice  of  the 
condition.*  If  the  instrument  in  its  body  purports  to  be  signed 
by  the  principal,  but  is  not  so  signed,  this  is  sufiicient  notice  to 
the  obligee  that  it  is  imperfect,  and  the  sureties  may  show  as  a 
defense  that  they  signed  upon  condition  that  the  principal  also 
should  sign."  But  it  has  been  held  that  the  mere  fact  that  there 
is  one  more  seal  to  an  obligation  than  the  number  of  names 
signed  to  it,  is  not  sufiicient  to  charge  the  obligee  with  notice 

'  FuUerton  v.   Sturges,  4  Ohio  St.  155.     Holding  that  in  such  a  case  pos- 

529.  session  of  the  obligation  is  prima  facie 

*  Carson  v.  Hill,   1  McMuUan   Law  evidence  that  those  who  signed   deliv- 

(So.  Car.)  76.  ered  it,  see  Grim  v.  School  Directors, 

^  Gourdin  v.  Kead,  8  Richardson  Law  51  Pa.  St.  219.     Holding  that  in  such 

(So.  Car.)  230.  a  case  it  was  not,  from  the  mere  fact 

■*  Ward  V.   Churn,   IS  Gratt.  (Ya.)  that  one  did  not  sign,  to  be  implied 

801;  Warfel  v.  Fiuntz,  76  Pa.  St.  88;  that  the  bond  was  incomplete,  and  not 

Pawling    V.    The    United   States,    4  binding  on  those  who  did  sign  it,  s^ee 

Cranch,   219;    Sharp  v.   The    United  Keyser  v.  Keen,  17  Pa.  St.  827. 

States,  4  Watts  (Pa.)  21;   State  Bank  ^  Wild  Cat  Branch  v.  Ball,  45  Ind. 

f.  Evans,  3  J.  S.  Green  (N.  J.  Law)  213. 


NOTICE   OF   CONDITION.  481 

that  another  was  to  sign  it.^  The  record  of  a  county  court  re- 
cited that  a  sheriff  elect  and  his  sureties,  naming  them,  came 
into  court  and  executed  the  sheriff's  bond.  One  of  the  sureties 
named  was  in  court  to  sign  the  bond,  but  through  inadvertence 
did  not  sign  it.  Held,  none  of  the  sureties  were  liable,  as  each 
had  a  right  to  suppose  that  all  named  in  the  order  would  sign,  and 
that  no  other  bond  would  be  approved."''  A  bond  in  its  body  pur- 
ported to  be  made  by  A,  as  principal,  and  B,  C  and  D,  as  sure- 
'ties,  and  was  signed  by  all  of  them  except  C.  The  bond  was 
signed  by  B  on  condition  that  he  should  not  be  bound  unless 
C  signed,  but  there  was  no  such  condition  as  to  D:  Held,  that 
B  was  not  bound  because  of  the  condition,  and  D  was  not  bound 
because  A  was  not.  The  court  said:  "  The  bond  purports  to  be 
the  joint  bond  of  all  the  parties.  Tlie  presumption  from  the  face 
of  it  is  that  '"  (D)  intended  to  be  bound  along  with  the  other 
parties  by  whom  it  was  executed,  and  not  severally."  ^  A  forth- 
coming bond  contained  in  its  body  the  names  of  the  principal 
and  two  sureties.  The  princij^al  and  one  of  the  sureties  named 
signed  the  bond  in  the  presence  of  the  sheriff,  M'ho  was  the  ob- 
ligee, and  the  bond  was  then  and  there  delivered  to  the  sheriff, 
who  had  no  notice  of  any  condition:  Held,  the  surety  could  not 
sustain  the  defense  that  he  agreed  to  become  liable  only  on  con- 
dition that  the  other  named  surety  should  sign.  Having  exe- 
cuted the  bond  in  the  presence  of  the  obligee,  and  seen  it  deliv- 
ered to  him  without  saying  anything,  the  law  will  hold  that  he 
intended  to  create  an  absolute  obligation."  H  as  principal,  and 
D  as  surety,  executed  a  bond  to  secure  the  payment  of  rent.  T 
was  named  in  the  bond  as  surety,  but  did  not  sign  it.  T  was  not 
present  when  the  bond  was  executed,  and  D  told  the  obligee  that 
T  could  not  then  conveniently  attend,  but  would  sign  at  any  time. 
T,  on  being  applied  to,  refused  to  sign,  and  D  knew  of  the 
refusal  and  made  no  objection:  Held,  D  was  liable  on  the  bond, 
although  the  court  said  it  might  have  been  otherwise  if  D,  upon 
the  refusal  of  T,  had  notified  the  obligee  that  he  was  not  willing 
to  remain  bound. ^ 

'Simpson's  Exr.  r.  Bovard,  74  Pa.  ^Johnson  v.  Weatherwax,    9  Kan- 

St.  351.  sas,  75. 

'Fletchers.  Leight,  4  Bush  (Ky.)  303.  ^Sidney  Road  Co.  v.   Holmes,    16 

3  Ward   r.   Churn,  18  Gratt.  (Va.)  Up.  Can.  Q.  B.  R.  268. 

801,  per  Joynes,  J. 

31 


483  DISCHARGE   OF   SURETY   BY   FEAUD,    ETC. 

§  358.  When  surety  discharged  because  the  signature  of  an- 
other surety  is  forged. — When  the  name  of  one  of  several  persons 
purporting  to  sign  an  instrument  is  forged,  and  sureties  sign  npon 
the  supposition  that  such  signature  is  gennine,  the  liability  of  the 
sureties  in  such  case  will  depend  upon  circumstance.  A  surety- 
signed  a  bond  to  which  the  name  of  another  was  then  forged,  sup- 
posing the  forged  signature  was  genuine.  The  forged  signature 
was  afterwards  entirely  erased,  and  the  bond  delivered  to  the  ob- 
ligee, who  had  no  notice  of  the  forgery  or  erasure.  The  court ' 
held 'the  snrety  bound,  and  said  that  "It  was  his  neglect  that  he 
was  ignorant  of  the  genuineness  of  the  signatures  which  preceded 
his  own.  He  imposed  no  condition  limiting  the  legal  effect  of 
his  signature,'  *  A  subsequent  surety  is  not  to  be  discharged  be- 
cause the  name  of  a  prior  one  has  been  forged.  His  own  signature 
is  an  implied  assertion  of  the  genuineness  of  those  which  pre- 
ceded it,  for  it  is  not  to  be  presumed  that  a  man  would  affix  his 
name  to  a  bond  when  the  prior  names  w^ere  forged."^  So  it  has 
been  held  that  a  party  who  signs  a  note  as  surety,  in  effect  affirms 
the  genuineness  of  the  preceding  signatures,  and  cannot  avoid 
liability  by  showing  that  they  are  foi'ged,  unless  the  creditor  knew 
of  the  forgery  when  he  took  the  note.^  An  agreement  in  writing 
to  "  guaranty  the  payment  of  a  note  signed  by  A  and  payable  to 
B,  and  by  him  indorsed,  and  also  indorsed  by  C  and  D,"  and 
further  described  by  its  amount,  date  and  time,  which  agreement 
is  made  after  a  note  is  shown  purporting  to  correspond  with  the 
description,  and  actually  indorsed  by  C  and  D,  but  on  which  the 
names  of  A  and  B  are  forged,  tliough  this  is  not  known  to  the  guar- 
antor nor  the  holder,  binds  the  guarantor  to  pay  that  note,  if  there 
is  no  other  note  in  circulation  at  the  time  of  the  guaranty  answer- 
ing the  description.  The  court  said:  "The  defendant  guaran- 
tied the  payment  of  this -particular  note,  and  thereupon  tlie  plain- 
tiff concluded  his  agreement  to  purchrsse  the  note,  both  parties 

'  Holding-  that  when  a  surety  sig-ned  ^  York  Co.  M.  F.  Ins.  Co.  v.  Brooks, 

upon  the  express  condition  that  anoth-  51  Me.  506,  per  Appleton,  C.  J.    To 

er,  whose  name  was  forged  to  the  bond,  similar  effect,  see  Franklin   Bank  v. 

should  also  sign,  the  surety  was  not  li-  Stevens,  39  Me.  5o2. 

able,  even  though  the  obligee  had  no  ^  Selser  v.   Brock,  3  Ohio  St.   302. 

notice  of  the  condition,  see  Linn  Coun-  Holding  that  a  surety  who  signs  after 

ty  V.  Farris,  52  Mo.  75.     Holding  the  the  forged  name  of  another  surety,  is 

surety  liable  where  the  obligee  had  no  liable,  if  he  did  not  rely  on  such  forged 

notice  of  the  condition,   see   State  v.  signature  as  genuine,  see  The  State  v. 

Baker,  64  Mo.  167.  Pepper,  31  Ind.  76. 


FORGED    SIGNATUEE.       FAILURE   OF    CONSIDERATION.  483 

being  equally  innocent  as  to  any  fraud,  misrepresentation  or  con- 
cealment, the  court  are  of  opinion  that  upon  the  non-payment  of 
the  same  at  maturity  by  the  parties  whose  names  were  borne 
thereon,  the  defendant  under  his  guaranty  became  liable  to  pay 
the  same  to  the  plaintiff.'*^  Where  a  surety  signed  a  sheriff's 
bond  in  the  presence  of  the  county  court,  the  bond  then  being  in 
possession  of  the  court,  and  the  principal  then  represented  to  him 
that  a  certain  person  whose  name  appeared  on  the  bond  had  signed 
it,  when  in  fact  such  signature  was  a  forgery,  it  was  held  the  surety 
was  not  bound,  on  the  ground  that  the  bond  being  in  the  custody 
of  the  court,  the  surety  had  good  reason  to  suppose  that  all  the 
signatures  were  genuine.''  In  holding  that  a  surety  who  signed  the 
bond  of  a  master  in  chancery,  supposing  that  the  forged  sig- 
nature of  a  preceding  surety  was  genuine,  was  not  liable,  the 
court  said:  "  By  a  fraud  practiced  upon  the  defendant  by  means 
of  the  commission  of  a  high  crime,  he  w-as  made  to  assume  a 
different  and  greater  liability  than  he  intended  or  supposed  he 
was  assuming  when  he  executed  the  bond.  *  In  this  case  he 
acted  upon  an  apparent  fact,  which,  without  the  commission  of  a 
great  crime  by  others,  must  have  been  true,  and  the  commission 
of  this  crime  the  bio- best  decree  of  caution  miirht  not  suofo-est, 
and  he  cannot  be  charged  with  even  slight  neglect  in  not  having 
discovered  the  forgery." ' 

§  359.  'When  failure  of  consideration  to  principal  is  a  de- 
fense for  surety.— It  has  been  held  that  the  sureties  on  a  note 
given  for  the  price  of  a  slave,  may  in  a  suit  against  them  in 
which  the  principal  is  not  joined,  set  up  as  a  defense  a  breach  of 
warranty  of  the  soundness  of  the  slave.*  But  it  has  been  held 
that  a  surety  for  the  purchase  money  of  land  cannot  set  up  a  de- 
fect or  failure  of  title  where  the  principal  does  not  desire  to  avail 
himself  thereof.^  In  a  suit  against  a  surety  upon  a  note  executed  for 
land,  sold  at  administrator's  sale,  the  principal  in  the  note  being 
dead,  and  neither  his  administrator  nor  heirs  being  parties,  it 

'  Veazie  v.  Willis,  6  Gray,  90,  per  The  same  thing  was  held  in  the  case 

Dewey,  J.  of  a  breach  of  warranty  of  a  horse  in 

*  Chamberlin  v.  Brawer,  3  Bush  Mitchnm  v.  Richardson,  3  Strob.  Law 
(Ky.)  561.  (So.  Car.)  254. 

^Seely  v.  Tlie  People,  27  111.  173,  per  ^  Ross  v.  Woodville,  4  Munf.  (Va.) 
Caton,  C.  J.  See,  also.  Pepper  v.  The  321;  Commissioner  i\  Exr.  of  Robin- 
State,  22  Ind.  399.  son,  1  Bailey  Law  (So.  Car.)  151. 

*  Scroggin  v.  Holland,   16  Mo.  419. 


484  DISCHAEGE   OF    SURETY   BY   FRAUD,    ETC. 

lias  been  held  the  surety  cannot  set  up  the  invalidity  of  the  sale 
as  a  defense.^  A  party  being  about  to  buy  a  note  signed  by 
principal  and  surety,  asked  the  principal  if  it  was  all  right,  and 
upon  being  answered  that  it  was,  purchased  it.  In  a  suit  on  the 
note  against  the  surety,  the  principal  being  dead,  it  was  held 
that  the  surety  could  not  show  tliat  the  note  was  without  consid- 
eration. Tlie  principal  would  have  been  estopped  to  show  that 
fact,  and  the  surety  stood  in  no  better  position.'  M  had  been 
the  casliier  of  the  plaintiffs'  branch  bank,  and  had  embezzled  the 
funds  thereof.  To  conceal  the  embezzlement,  he  bought  from 
the  plaintiff's  the  banking  house  and  assets  of  the  branch  bank, 
the  assets  being  described  in  the  bill  of  sale,  in  accordance  with 
the  list  of  them  furnished  by  M  himself,  which  list  was  false,  and 
comprised  various  bonds,  bills  and  notes,  that  did  not  exist.  M 
gave  his  notes  for  the  price,  with  the  defendants  as  sureties,  they 
as  well  as  the  plaintiffs  being  ignorant  of  the  fraud  of  M.  After- 
wards M  absconded,  and  his  sureties  claimed  they  were  not 
bound  because  they  became  sureties  on  a  sale,  and  their  princi- 
pal had  not  received  the  consideration  thereof,  and  to  hold  them 
liable  would  be  to  make  them  liable  for  the  defalcation  of  M, 
and  not  for  a  purchase  made  by  him.  The  court  held  the  sure- 
ties liable,  and  said  that  M  could  not  set  up  want  of  con- 
sideration to  defeat  the  sale,  and  the  sureties  were  in  no  better 
position.^ 

§  360.  When  surety  not  discharged  by  false  representation 
of  third  person. — A  new  bond  having  been  demanded  of  a  state 
treasurer,  certain  sureties  before  signing  the  same,  inquired  of 
the  legislature  and  of  the  comptroller,  and  were  falsely  informed 
by  each,  that  the  treasurer  had  before  conducted  himself  properly 
in  office.  Held,  the  legislature  was  the  agent  of  the  state  in  the 
premises,  and  its  rej^resentations  bound  the  state,  but  it  was  oth- 
erwise with  reference  to  the  comptroller.*  It  has  been  held  that 
the  cashier  of  a  bank  ordinarily  has  no  authority  to  discharge  its 
debtors  without  payment,  nor  to  bind  the  bank  by  an  agreement 
that  a  surety  shall  not  be  called  upon,  or  that  he  will  have  no 
further  trouble  about  the  debt,  but  that  if  the  cashier  informs  the 

'  Lathrop  v.  Masterson,  44  Texas,  ^Union  Bank  v.  Beatty,  10  La.  An. 

527.  378. 

^  Dillingham  v.  Jenkins,  7  Smedcs  *  Sooy  ads.  State,  38  New  Jer.  Law, 

&  Mar.  (Miss.)  479.    To  same  effect,  324;  Sooy  ads.  State,  39  New  Jer.  Law 

see  McCabe  v.  Raney,  32  Ind.  309.  135. 


NON-COMPLIANCE   WITH    TEEMS    ON   WHICH    SURETY    SIGNED.    485 

surety  that  the  debt  is  paid,  and  tlie  surety  relies  upon  the  state- 
ment, and  is  prejudiced  thereby,  he  is  discharged,  because  a  cash- 
ier has  authority  to  receive  payment  of  debts  due  the  bank,  and 
to  give  information  concerning  the  same.'  A  party  was  properly 
arrested  in  a  civil  suit,  and  the  sheriif  falsely  represented  to  him 
and  to  one  who  became  his  surety,  that  unless  he  gave  a  note  with 
surety,  he  would  have  to  go  to  jail,  and  no  bail  would  be  taken. 
The  principal  and  surety,  thereupon  relying  upon  such  false  rep- 
resentations, signed  the  note  to  procure  the  principal's  release,  but 
the  money  for  which  the  note  was  given  was  in  fact  due  the  party 
who  caused  the  arrest.  Held,  the  surety  was  liable.  The  mis- 
representations were  concerning  matters  of  law,  and  it  did  not 
appear  the  sheriff  was  authorized  by  the  creditor  to  make  them.'" 
§  361.  Miscellaneous  cases  holding  surety  discharged  by 
non-compliance  -with  the  terms  upon  which  he  signed. — The 
issuing  of  a  writ  of  summons,  although  returned  not  served,  is  a 
suit  brought,  and  will  release  the  guarantor  of  a  bond  who  has 
become  bound  in  consideration  of  total  forbearance.^  A  guarantor 
for  goods  to  be  sold  on  a  credit  of  eighteen  months,  is  not  liable 
if  the  sale  is  made  on  a  credit  of  twelve  months,  even  though  the 
creditor  waits  six  months  longer."  So  where  A  hired  a  slave  from 
B  for  one  year,  and  executed  his  note  to  B,  with  G  as  surety,  for 
the  price  agreed  to  be  paid,  and  the  slave,  without  just  cause,  vol- 
untarily returned  to  B  before  the  year  was  out,  and  worked  for 
him  the  remainder  of  the  time,  and  A  and  B  agreed  that  the  note 
should  be  credited  with  the  value  of  the  services  for  the  time  the 
slave  did  not  work  for  A,  it  was  held  that  C  was  entirely  dis- 
charged.^ A  purchaser  of  land  having  given  two  notes  with 
surety  for  the  purchase  money,  and  entered  into  possession  of  the 
land,  afterwards  brought  a  suit  in  chancery  to  rescind  the  sale  on 
the  ground  of  fraud,  and  the  sale  was  rescinded,  and  a  decree 
made  against  the  purchaser  for  a  certain  amount  for  use  and  oc- 
cupation, but  it  was  held  that  there  could  be  no  decree  against 
the  surety  for  the  use  and  occupation.'     A  being  indebted  to  B  in 

1  Bank  i).  Haskell,  51  N  Hamp.116.  ^Qai^^^ell  v.   Heitshu,   9   Watts  & 

2  Reed  v.  Sidener,  32  Ind.  373.  Hold-      Serg.  (Pa.)  51. 

ing  sureties  on  i'orthcoming  bond  dis-  "*  Bacon  v.  Chesney,  1  Starkie,  192. 

charged  by  false  representation  of  con-  *  Hawkins     t\     Humble,     5     Cold. 

stable  that  the  property  had  been  le-  (Tenn.)  531. 

gaily  levied  on,  see  Bradley  v.  Kesee,  ^  Elhott  v.  Boaz,  13  Ala.  535. 

5  Cold.  (Teun.)  223. 


486  DISCIIAKGB   OF    SUEETY   BY   FEAUD,    ETC. 

more  than  3,000?.  agreed  to  take  1,500?.  in  full  payment  of  the  debt, 
and  in  consideration  of  this  agreement,  C  gave  B  a  note  for  1501. 
in  part  payment  of  the  1,500?.  Afterwards  A  became  bankrupt 
and  B  proved  his  full  claim  of  more  than  3,000?.  against  A's  es- 
tate. Held,  C  was  thereby  discharged.'  The  indorser  of  a  prom- 
issory note  protested  for  non-payment,  signed  an  agreement 
reciting  that  the  drawer  was  about  making  an  arrangement  with 
the  holder  for  a  renewal  of  the  note,  which  was  to  be  reduced  from 
five  to  ten  per  cent,  every  sixty  days,  and  consenting  that  the 
protested  note  should  be  held  as  collateral  security,  and  that  no 
advantage  would  be  taken  of  any  extension  given.  The  holder 
received  the  agreement  and  extended  the  time  without  always 
exacting  the  stipulated  reduction.  Held,  the  indorser  was 
thereby  discharged.^  A  surety  covenanted  to  pay  certain  ad- 
vances made  by  the  creditors  to  the  principal  on  a  specified  day, 
or  so  soon  as  certain  timber  should  be  sold  at  Quebec.  It  was 
the  evident  intention  from  the  contract,  that  the  timber  should  be 
conveyed  to  Quebec  and  there  sold,  the  money  being  advanced  to 
get  the  timber  ont.  Before  the  appointed  time  arrived,  and 
while  the  timber  was  being  conveyed  to  Quebec,  an  agent  of  the 
creditors  obtained  from  the  principal  a  confession  of  judgment, 
and  sued  out  execution  thereon  and  sold  the  timber,  which  sold 
for  more  than  it  would  have  brought  in  Quebec.  Held,  the 
surety  was  absolutely  discharged.  The  terms  upon  which  he 
signed  had  not  been  complied  with,  and  whether  benefited  or  in- 
jured, he  was  no  longer  liable  on  the  contract. "*  But  it  has  been 
held  that  a  sale  by  a  creditor  of  collateral  securities  placed  in  his 
hands  by  the  principal,  in  violation  of  a  stipulation  for  a  particu- 
lar notice  of  sale  contained  in  the  contract,  under  which  they 
were  pledged,  does  not  per  se  discharge  in  toto  a  surety  who  is 
liable  for  the  debt;  but  by  such  sale  the  creditor  makes  the  secu- 
rities his  own  to  the  extent  of  discharging  the  surety  to  an 
amount  equal  to  their  value." 

'  Gilletfc  V.  Whitmarsh,  8  Adol.  &  Ell.  "  Vose  v.  Florida  R.  R.  Co.  50  New 

(N.S.)966;  Holding  that  when  the  con-  York,  369.    HokHng  that  a  surety'on  a 

feideration  for  a  guaranty  is  ti-aversed,  non-negotiable    note,    payable  to    a 

it  must  be  proved  by  the  creditor;  see  bank  is  not  liable  if  the  note  is  dis- 

Smith  V.  Compton,  6  Cal.  24.  counted,    and    the  proceeds   diverted 

•    ^  Dundas  v.  Sterling,  4  Pa.  St.  73.  from  the  object  intended  by  the  surety, 

^  Dickson  v.  McPherson,  3  Grant's  see  Farmers    &    Mechanics  Bank  v. 

Ch.  Appl.  R.  186.  Hathaway,  36  Vt.  539;    Holding  that  a 


MISCELLANEOUS   CASES.  487 

^  362.  When  surety  discharged  by  fraud — Other  cases. — A 
creditor  obtained  the  note  of  a  principal  by  fraud,  and  tliis  note 
was  afterwards  guarantied  by  a  third  person.  In  a  suit  against 
the  guarantor,  it  was  held  that  he  might  show  as  defense  to  him- 
self the  fraud  upon  his  principal.  The  court  said  that  a  person 
who  obtained  an  obligation  from  the  principal  by  fraud  could  not 
wipe  out  the  fraud  by  obtaining  a  surety.  "  Personal  defenses 
do  not  pass  to  others,  *  but  defenses  inherent  in  the  thing, 
such  as  among  others,  fraud  and  duress,  are  available  as  to  sure- 
ties." ^  Where  a  guaranty  for  the  payment  of  a  debt  in  full  was 
given  by  one  not  a  creditor,  pending  negotiations  for  a  composi- 
tion, and  the  creditor  then  signed  the  composition  deed,  and  part 
of  the  other  creditors  knew,  and  part  did  not  know,  the  above 
facts,  it  was  held  that  the  guaranty  was  fraudulent  as  to  the  cred- 
itors who  did  not  know  the  facts,  and  void.''  A  creditor  for  a  pri- 
vate debt  due  him  by  one  member  of  a  firm,  took  a  note  to  which 
the  firm  name  was  signed  by  such  member  without  the  knowl- 
edge or  consent  of  the  other  partner.  A  surety  signed  the  note, 
supposing  it  to  be  the  note  of  the  firm,  and  it  was  held  that  as 
the  partner  who  did  not  sign  the  note  was  not  bound,  the  surety 
who  supposed  he  was  becoming  responsible  for  both  partners,  was 
not  bound.^  The  sureties  on  a  bond  given  to  secure  the  perform- 
ance of  a  contract  for  the  supply  of  rations  for  the  troops  of  the 
United  States,  which  provides  "  that  all  advances  made  for  and 
on  account  of  the  supplies  to  be  furnished  pursuant  to"  the  con- 
tract shall  be  duly  accounted  for,  are  not  responsible  for  any  bal- 
ance of  advances  in  the  hands  of  the  contractor  at  the  expira- 
tion of  the  contract,  made  to  him,  not  on  account  of  the  particu- 
lar contract  exclusively,  but  on  account  of  that  and  other  con- 
tracts as  a  common  fund  for  supplies,  where  accounts  for  the  sup- 
plies, expenditures  and  funds  had  all  been  throughout  blended 

guaranty  covered  a  future,  and  not  a  '  Putnam  v.   Schuyler,  4  Hun.  (N. 

past,  indebtedness;    see  Pritchetfc   v.  Y.)  166. 

WiUon.  39  Pa.  St.  421;  Holding  that  '■'Coleman  v.  Waller,   3  Younge  & 

a  note  signed  by  a  surety  for  one  pur-  Jer.  212. 

pose  cannot  be  diverted  to  another,  ^Hagar  v.  Mounts,  3  Blackf.  (Ind.) 

see  Lee  v.  Highland  Bank,  2  Sandf.  57.     Holding  that  in  such  case  the 

Ch.  R.  311.     Upon  the  subject  of  the  surety  is  bound  if  the  note  is  under 

discharge  of  a  surety  because  another  seal,  see  Harter  ».  Moore,  5  Blackf. 

surety  signed  without  his  knowledge,  (Ind.)  367. 

see  Taylor  v.  Johnson,  17  Ga.  521. 


488  DISCnAKGE    OF   SURETY    BY   FRAUD,    ETC. 

indi scrim  in cately  by  both  parties,  and  no  separate  portion  Lad  been 
desiirnated  for  tliis  particular  contract.^ 

§  363.  Estoppel — Usury — Other  cases  holding  surety  not  dis- 
charged.— At  the  time  a  note  was  executed  by  principal  and 
surety,  the  principal  secretly  agreed  with  the  creditor  to  pay, 
and  afterwards  did  pay,  usurious  interest,  which  was  indorsed 
generally  on  the  note  as  payment.  Held,  the  surety  was  not  dis- 
charged, because  the  agreement  to  pay  usury  was  void,  and  in 
no  way  worsted  the  condition  of  the  surety.'  Where  usury, 
which  the  principal  had  contracted  to  pay,  was  included  in  the 
amount  for  which  a  note  on  its  face  was  given,  it  was  held  that 
an  omission  to  disclose  that  fact  to  a  surety,  would  not  discharge 
hira.^  Where  a  constable's  bond  was  executed  by  certain  sure- 
ties, upon  the  understanding  that  it  should  not  bind  them  unless 
it  should  be  executed  by  other  named  sureties,  but  the  sureties 
who  signed  permitted  the  constable  to  act  under  the  bond,  which 
was  never  signed  by  the  other  sureties,  it  was  held  that  the  sure- 
ties who  signed  were  estopped  from  denying  their  liability.'* 
Where  the  name  of  P,  one  of  several  intended  sureties,  is  affixed 
to  a  bond,  under  an  authority  which  the  other  sureties  have  at 
the  time  an  oj)portunity  of  examining,  and  all  is  done  that  was 
contemplated  to  render  the  bond  eifectual,  they  cannot,  in  the  ab- 
sence of  fraud,  claim  exemption  from  liability  because  the  au- 
thority is  defective  and  insufficient  to  bind  P.  Having  had  an 
opportunity  to  examine  the  authority,  they  cannot  be  permitted 
to  say  they  failed  to  do  it.^  A  surety  cannot  resist  the  payment 
of  notes  for  the  purchase  money  of  land,  upon  the  ground  that 
the  creditor  has  not  paid  a  prior  mortgage,  on  the  land,  which  he 
has  agreed  to  pay.* 

§  3G4.      Miscellaneous   cases  holding  surety  not  discharged. — 

'United  States  v.  Jones,  8  Peters,  ^ Samuel  v.  Withers,    16  Mo.  532. 

?)99.     Holding  that  a  surety  on  a  note  Holding  that  subsequent  agreement 

given  for  the  pretended  purchase  mo-  by  principal  on  foot  of  instrument  to 

ney  of  goods,  is  not  liable  when  there  pay  interest  does  not  discharge  surety, 

isinfactnosale,  seeTrammelli;.  Swan,  see  Tremper  v.   Hemphill,     8  Leigh 

25  Texas,  473.  (Va.)  823. 

-Richmond  «j.    Standclift,     14  Vt.  ^ Robertson  t;.  Coker,    11  Ala.  466; 

258;  Davis  v.   Converse,  35  Vt.  503;  May  v.  Robertson,  13  Ala.  86. 
Mitchell  V.  Gotten,  Exr.  3  Fla.  134.  To         ^  McLure  v.  Cloclough,  17  Ala.  89. 
contrary  effect,  see  Burks  v.  Wonter-  ^  Lyon  v.  Lcavitt,  3  Ala.  430. 

Une,  6  Bush  (Ky.)  20. 


CONCEALMENT   OF   MATEKIAL   FACTS.  489 

A  guarantor  of  a  note  cannot,  in  the  absence  of  fraud  upon  him, 
shiow  in  defense  of  a  suit  on  the  guaranty,  tliat  those  Avho  were 
sureties  upon  the  note  were  discharged  by  the  statute  of  limi- 
tations at  tlie  time  he  made  the  jiuarantv/  A  baro:ained  with 
B  to  remove  a  building,  and  C  guarantied  to  pay  for  the 
removing,  as  follows:  "  If  he  does  not  pay  you  for  so  doing,  I  will 
see  you  paid,  not  to  exceed  $200."  A  commenced  to  remove  the 
building,  bnt  w^s,  through  the  fault  of  B,  stopped  by  the  authori- 
ties, and  the  building  was  burned:  Held,  A  might  recover  against 
C  on  the  guaranty  for  the  work  which  had  been  done.^  A  guar- 
anty was  as  follows:  "If  you  'give  A  credit  we  will  be  responsi- 
ble that  his  payments  shall  be  regularly  made."  A  had  before 
been  dealing  with  the  creditor  on  credit,  and  after  the  guaranty 
was  made  a  little  longer  credit  was,  at  his  request,  given  him; 
and  these  last  credits  were  a  little  longer  than  the  usual  course 
of  trade:  Held,  the  guaranty  was  for  a  dealing  on  terms  which 
should  be  agreed  upon  between  the  parties,  and  the  guarantor  was 
liable.'  M  as  principal,  and  A,  F  and  P  as  sureties,  executed  a 
promissory  note  to  raise  money  to  pay  a  note  on  which  P  was  sole 
surety  of  M,  and  the  note  was  delivered  to  P  in  order  that  he 
might  get  it  discounted.  Before  getting  the  note  discounted,  P 
paid  the  debt  on  which  he  was  sole  surety  out  of  his  own  funds: 
Held,  P  was  not  then  bound  to  cancel  the  note,  nor  surrender  it 
to  his  co-sureties,  but  might  thereafter  use  it  as  originally  in- 
tended.* 

§  365.  "When  surety  discharged  by  concealment  of  material 
facts. — If  in  the  contract  of  suret_yship  there  is  any  fraudulent 
concealment  on  the  part  of  the  obligee  as  to  a  material  part  of 
the  transaction  to  induce  the  surety  to  become  a  part}',  he  is  not 
bound.  But  to  be  material,  it  must  be  a  concealment  of  some 
fact  or  circumstance   immediately  affecting  the  liability  of  the 

1  Worcester    Mecb.    Sav.    Bank  v.  Hun,    (N.  Y.)   244.     Holding  that,  a 

Hill,  113  Mass.  25.  surety  is  discharged  if  the  agent  of  the 

'  Mellen  r.  Nickerson,  12  Gray,  445.  creditor  represents  to  him  that  more 

^  Simpson  ?;.  Manley,  2  Crompton  &  money  is  to  be  advanced  the  princi- 

Jer.  12;  Id.  2  Tyrw.  86.  pal  than  is  advanced,  and  part  of  the 

*  Flanagan     v.   Post,   45  Vt.     246.  amount  for  which  the  surety  becomes 

Holding  that  the  surety  of  a  tenant  bound,  is  an  old  debt  due  from  the 

cannot  set  up  as  a  defense  damage  to  principal  to  the  creditor,  see  Stone  v. 

the  premises,  unless  the   principal  is  Compton,  5  Bing.   (N.  C.)  142;  Id.  6 

insolvent,   see  Morgan    v.    Smith,   7  Scott,  846. 


490  DISCHARGE   OF   SURETY   BY   FRAUD,    ETC. 

surety,  and  bearini^  directly  upon  the  particular  transaction  to 
which  the  suretyship  attaches.  And  in  the  case  of  a  hank  cash- 
ier, where  the  bond  covered  defaults  prior  as  well  as  subsequent 
to  its  execution,  it  was  held,  that  concealment  by  the  agents  of 
the  bank,  that  its  books  had  been  badly  kept,  that  no  bonds  had  been 
prev^'ously  given,  and  that  the  directors  had  been  negligent,  etc., 
did  not  discharge  the  surety,  because  he  did  not  become  responsi- 
ble for  those  matters,  and  they  were  not  material  to  the  risk  as- 
sumed. But  knowledge  that  the  cashier  was  a  defaulter,  and  con- 
cealment of  that  fact,  would  discharge  the  surety.^  In  order  that 
the  surety  may  be  discharged  by  the  concealment  of  material 
facts,  it  must  appear  that  the  information  was  fraudulently  with- 
held from  him.^  But  it  has  been  held  that  the  mere  non-com- 
munication by  the  creditor  to  the  surety,  of  nuiterial  facts  with- 
in the  knowledge  of  the  creditor,  which  the  surety  should  know, 
although  not  willful  or  intentional  on  the  part  of  the  creditor,  or 
with  a  view  to  any  advantage  to  himself,  will  discharge  the  sure- 
ty. The  fraud  on  the  surety  consists  in  the  situation  in  which 
he  is  placed,  and  not  on  what  is  passing  in  the  mind  of  the  credi- 
tor.^ It  has  been  held,  that  where  a  creditor  is  about  to  take  a 
note  with  a  surety  from  a  principal  whom  he  knows  to  be  insol- 
vent, the  mere  fact  that  the  creditor  does  not  voluntarily  and 
without  solicitation  announce  to  the  proposed  surety  the  insol- 
vency of  the  principal,  will  not  release  the  surety,  although  if 
the  surety  had  applied  to  the  creditor  and  been  misinformed,  it 
would  have  been  otherwise.  The  court  said :  "  The  creditor  in  such 
case  may  suppose  that  the  proposed  surety  is  as  well  advised  of 
the  pecuniary  condition  of  the  principal  as  he  is  himself,  and 
knowing  his  condition,  is  willing  to  help  him  by  becoming  his 
surety."*  A  party  who  is  about  to  take  a  bond  of  indemnity 
from  a  surety,  is  not  obliged  to  explain  to  him  the  meaning  or 
effect  of  the  bond,  unless  inquiry  is  made  of  him.  If  he  in 
any  manner  mislead  the  surety  as  to  the  effect  of  the  bond,  or  has 

'  Franklin  Bank  v.  Stevens,  39  Me.  North  British  Ins.   Co.   v.  Lloyd.   10 

532;  Sooy  ads.  State,  39  New  Jer.  Law  Wels.  Hurl.  &  Gor.,  523. 

(10  Vroom)  135.     As  to  what  conceal-  ^Railton  v.  Mathews,    10  Clark  & 

ment    will    discharge    a    surety,    see  Finnelly,  934. 

Frarklin  Bank  v.  Cooper,  36  Me.  179.  *  Ham  v.   Greve,  34    Ind.  18,    per 

**  Municipal  Corp.   of   East  Zora  v.  Worden,  J.    To  a  contrary  effect,  see 

•Douglas,  17  Grant's  Ch.  R.  462;  Peers  Small  v.  Carrie,  2  Drewry,  102. 
r.    Oxford,    17   Grant's  Ch.   R.   472; 


CONCEALMENT   OF   MATERIAL   FACTS.  491 

reason  to  believe  he  is  laboring  under  a  mistake  as  to  its  eifect, 
and  does  not  correct  it,  equity  will  prevent  advantage  being  taken 
of  any  bond  so  procured.  But  wlien  none  of  these  things  exist, 
and  the  surety  has  an  opportunity  to  examine  the  bond  and  sub- 
mit it  to  counsel,  he  cannot  escape  responsi1)ility  by  the  fact  that 
the  obligee  did  not  explain  it  to  him.*  An  obligation  to  a  banker 
by  a  third  party,  to  be  responsible  for  a  cash  credit,  to  be  given 
one  of  the  banker's  customers,  is  not  avoided  by  the  fact  that 
immediately  after  the  execution  of  the  obligation,  the  cash  credit 
is  employed  to  pay  off  an  old  debt  due  the  banker,  and  this, 
though  it  was  the  intention  so  to  applj^  it  when  the  surety  became 
bound,  and  this  intention  was  not  communicated  to  him,  he  mak- 
ing no  inquiry.  The  court  said  that  a  surety  is  not  entitled  with- 
out inquiry  to  be  informed  of  all  previous  dealings  between  the 
creditor  and  principal.  "  Because  no  bankers  would  rest  satisfied 
that  they  had  a  security  for  the  advance  they  made,  if,  as  it  is 
contended,  it  is  essentially  necessary  that  everything  should  be 
disclosed  by  the  creditor  that  it  is  material  for  the  surety  to 
know."  The  test  as  to  whether  the  disclosure  should  be  made 
voluntarily,  is  "  whether  there  be  a  contract  between  the  debtor 
and  the  creditor,  to  the  effect  that  his  position  shall  be  different 
from  that  which  the  surety  might  naturally  expect."^  Where  it 
was  agreed  between  principal  and  creditor  that  a  guaranty  for 
part  of  the  debt  should  be  surrendered  upon  a  new  guaranty  being 
executed,  and  this  fact  was  not  communicated  to  the  party  sign- 
ing the  new  guaranty,  it  was  held  that  he  was  not  thei-eby  dis- 
charged. The  court  said  that  the  concealment,  in  order  to  discharge 
the  guarantor,  must  be  fraudulent.  If  it  were  otherwise,  "  it 
would  be  indispensably  necessary  for  the  bankers  to  whom  the  se- 
curity is  to  be  given,  to  state  how  the  account  has  been  kept, 
wliether  the  debtor  was  punctual  in  his  dealings,  whether  he  per- 
formed his  promises  in  an  honorable  manner;  for  all  these  things 
are  extremely  material  for  the  surety  to  know.  But  unless  questions 
be  particularly  put  by  the  surety  to  gain  this  information,  * 
it  is  quite  unnecessary  for  the  creditor,  to  whom  the  suretyship  is 
given,  to  make  any  such  disclosure."  ^ 

1  Small  v.  Currie,  2  Drewry,  102.;  to  =^  Hamilton  v.  Watson,  12  Clark  & 

similar  effect,  see  Wyfches  v.  Labou-      Finnelly,  109,  per  Ld.  Campbell, 
chere,  •"  De  Gex  &  Jones,  593.  ^  North  British  Ins.  Co.  v.  Lloyd,  10 

Exchequer,  523,  per  Pollock,  C.  B. 


492  DISCnAEGE    OF    SUKETY    BY    FKAUD,    ETC. 

§  36G.      When    surety  discharged   by  concealment  of  material 

facts. — It  has  been  lield  tliat  "  one  who  becomes  surety  for  another, 
must  ordinarily  be  presumed  to  do  so  upon  the  belief  that  the 
transaction  between  the  principal  parties  is  one  occurring  in  the 
nsual  course  of  business  of  that  description,  snbjecting  him  only 
to  the  ordinary  risks  attending  it,  and  the  party  to  whom  he  be- 
comes a  surety  must  be  presumed  to  know  that  such  will  be  his 
understanding,  and  that  he  will  act  upon  it  nnless  he  is  informed 
that  there  are  extraordinai-y  circumstances  affecting  the  risk.  To 
receive  a  surety  known  to  be  acting  upon  the  belief  that  there  are 
no  unusual  circumstances  by  which  his  risk  will  be  materially  in- 
creased, well  knowing  that  there  are  such  circumstances,  and  hav- 
ing an  opportunity  to  make  them  known,  and  withholding  them, 
must  be  regarded  as  a  legal  fraud,  by  which  the  surety  will  be  re- 
lieved from  his  contract." '  It  was  agreed  between  the  vendors 
and  the  vendee  of  iron,  that  the  latter  should  pay  10s.  per  ton  be- 
yond the  market  price,  which  sum  was  to  be  applied  in  liquida- 
tion of  an  old  debt  due  to  one  of  the  vendors.  The  payment 
for  the  goods  was  guarantied  by  a  third  person,  but  the  bargain 
between  the  parties  was  not  communicated  to  him,  and  it  was 
held  that  this  was  a  fraud  upon  him  which  relieved  him  from 
liability.'  If  there  is  a  secret  valid  agreement  between  the  cred- 
itor who  is  selling  property  and  the  buyer,  whereby  a  longer  time 
is  to  be  given  than  that  mentioned  in  the  contract  seen  and 
signed  by  the  sureties,  and  such  agreement  is  concealed  from  the 
sureties,  they  will  be  thereby  discharged.'  It  was  agreed  between 
a  creditor  and  principal  debtor,  as  a  condition  to  the  creditor 
signing  a  composition  deed  of  the  principal,  that  the  principal 
should  assume  and  include  in  the  indebtedness,  wdiich  was  the 
basis  of  the  compromise,  a  debt  due  the  creditor  from  another 
2)arty,  for  which  the  j)rincipal  was  not  liable,  and  that  he  should 
give  his  notes,  which  he  did,  for  the  balance  of  the  debt  not  cov- 
ered by  the  composition  notes.  This  arrangement  was  concealed 
from  a  surety  who  indorsed  the  composition  notes.  Held,  he  was 
not  liable  upon  such  indorsement.  The  court  said:  "  It  is  a  clear 
and  well  settled  principle,  that  a  security  given  by  a  surety  is 
voidable  on  the  ground  of  fraud,  if  there  is,  with  the  knowledge 

^  Franklin  Bank  v.  Cooper,  36  Me.  *  Pidcock    v.    Bishop,    3    Barn,    & 

179,  per  Shepley,  C.  J.  Cress.  605;  Id.  5  Dow  &  Ry.  505. 

2  Peck  V.  Druett's  Admr.  9  Dana.  (Ky.)  486. 


CONCEALMENT   OF   FACT   THAT   PKINCIPAL    IS   DEFAULTER.      493 

or  assent  of  the  creditor,  such  a  misrepresentation  to,  or  conceal- 
ment from,  the  sm-ety  of  the  transaction,  between  tlie  creditor 
and  his  debtor,  that  but  for  the  same  having  taken  phice,  either 
the  suretyship  wouhi  not  have  been  entered  into  at  all,  or  being 
entered  into,  the  extent  of  the  surety's  liability  might  be  thereby 
increased." '  Where  before  the  bond  of  a  bank  cashier  was  entered 
into,  the  officers  of  the  bank  knew  that  the  cashier  had  lost  money 
at  gambling,  and  required  a  larger  bond  from  him  in  consequence, 
and  did  not  communicate  these  facts  to  the  surety,  it  was  held 
that  the  surety  was  not  thereby  discharged.  The  court  said:  "In 
this  case  the  undisclosed  information  related  not  to  the  business 
which  was  the  subject  of  the  suretyship,  and  not  to  the  conduct 
of  the  cashier  as  cashier,  but  to  his  general  character.  It  did 
not  follow  that  because  he  gambled  he  would  fail  in  his  duty  as 
cashier."  ^ 

§  367.  "When  surety  discharged  by  concealment  of  fact  that 
principal  is  a  defaulter.  —  If  the  party  who  takes  a  bond  for 
the  conduct  of  the  principal  in  an  employment,  knows  at  the 
time  that  the  principal  is  then  a  defaulter  in  said  employment, 
and  conceals  the  fact  from  the  surety,  such  concealment  is  a  fraud 
upon  the  surety,  and  discharges  him.^  But  where  the  officers  of 
a  bank  knew  that  a  teller,  while  in  the  employ  of  another  bank,  had 
been  suspected  of  embezzlement,  and  did  not  inform  the  surety 
of  such  teller  of  this  fact,  who  signed  in  ignorance  thereof,  it  was 
held  that  he  was  not  thereby  discharged.  The  court  said  that, 
being  a  mere  rumor,  it  need  not  be  communicated,  but  it  would 
have  been  diiferent  if  the  charge  had  assumed  positive  criminal 
form.*  The  teller  of  a  bank  was  a  defaulter  at  the  time  sureties 
entered  into  a  new  bond  for  the  faithful  performance  of  his  du- 
ties, but  the  bank  did  not  know  the  fact,  and  did  not  practice  any 
willful  concealment  on  the  surety.  Held,  the  surety  was  not  dis- 
charged, though  the  court  said  that  if  the  surety  had  requested 
the  bank  to  examine  the  account,  or  if  the  bank  had  made  any 
false  representations  on  which  the  surety  relied,  it  would  have 

'  Doughty  V.  Savage,  28  Ct.  146,  per  Scotland,  1  Dow,  272;    contra,  JEtnn 

Storrs,  C.  J.  Life  Ins.  Co.  v.  Mabbett,  18  "Wis.  667; 

'■^  Atlas  Bank  v.  Brownell,  9  Rhode  see,  also,  State  v.  Dunn,  11   La.  An. 

Isl.  168,  per  Potter,  J.  649;  Sooy  ads.  State,  39  New  Jer.  Law 

3  Franklin  Bank  v.  Cooper,  39  Me.  (10  Vroom)  135. 

542;  Cashin  v.  Perth,  7  Grant's  Ch.  &  *  State  v.  Atherton,  40  Mo.  209. 
Appl.   Rep.  340;   Smith  v.  Bank  of 


494  DISOHAKGE   OF    SURETY   BY   FRATTD,    ETC. 

been  different.'  The  same  thing  was  held  in  a  similar  case,  where 
the  officers  of  the  bank  had  been  grossly  negligent  in  discovering 
frauds  committed  by  a  book-keeper,  who  was  afterwards  promoted 
to  the  office  of  cashier,  and  gave  bond  with  surety  for  his  good  be- 
havior as  such.'  An  agent  for  the  sale  of  coal  on  commission,  who 
by  agreement  was  bound  to  turn  over  his  receipts  to  his  employers, 
within  a  specified  time,  was  largely  in  arrear,  and  was  required 
by  his  employers  to  find  security,  and  a  surety  became  bound  for 
him  to  the  extent  of  100?.  The  agreement  of  suretyship  recited 
the  terms  of  dealing  between  the  employer  and  the  agent,  but 
the  fact  of  the  indebtedness  was  concealed  from  the  surety.  Held, 
the  surety  was  discharged,  on  the  ground  that  under  the  circum- 
stances the  recitals  in  the  agreement  amounted  to  an  active  mis- 
representation.^ The  cashier  of  a  bank,  not  having  executed  a 
bond,  was  guilty  of  fraud  and  embezzlement  of  the  funds  of  tlie 
bank,  the  discovery  of  which  might  have  been  easily  eft'ected 
by  the  use  of  slight  diligence  on  the  part  of  the  directors.  They 
however  published,  in  accordance  with  law,  a  statement  of  the 
condition  of  the  bank,  from  which  it  appeared  that  its  affairs 
were  being  prudently  and  honestly  administered,  and  from  which 
the  public  had  a  right  to  believe  the  cashier  was  trustworthy.  Af- 
terwards, certain  persons  who  had  seen  the  report,  became  sure- 
ties on  the  official  bond  of  the  cashier,  and  were  sought  to  be 
charged  thereon  for  his  subsequent  embezzlements.  Held,  the 
sureties  had  a  right  to  believe  that  the  directors,  before  publish- 
ing the  statement,  investigated  the  condition  of  the  bank,  and 
being  misled  by  the  misrepresentations  of  the  published  state- 
ment, they  were  released.  The  court  said  that  a  fraud  may  be 
perpetrated  as  well  by  the  assertion  of  facts  that  do  not  exist, 
ignorantly  made  by  one  whom  the  person  acting  upon  the  asser- 
tion, has  a  right  to  suppose  has  used  reasonable  diligence  to  in- 
form himself,  as  by  concealing  facts  known  to  exist,  which  in 
equity  and  good  conscience  ought  to  be  made  known." 

§  3G8.  Continuing  servant  in  employ  after  dishonesty  discov- 
ered— Negligence  in  discovering  default— Notice  of  default, — 
"Where  there  is  a  continuing  guaranty  for  the  honesty  of  a  ser- 

*  Wayne    v.    Commercial   National  386;  Lee  i'.  Jones,  17  J.  Scott  (N.  S.) 

Bank,  52  Pa.  St.  .343.  482. 

^Tapley  v.  Martin,  116  Mass.  275.  *  Graves  v.  Lebanon   Natl.  Bapk,  10 

»Lee  v.  Jones,    14  J.   Scott  (N.  S.)  Bush  (Ky.)  23. 


CONTINUING   DISHONEST   SERVANT   IN   EMPLOYMENT.  495 

vant,  if  a  master  discovers  that  the  servant  has  been  guilty  of 
dishonesty  in  the  course  of  the  service,  and  instead  of  dismissing 
continues  him  in  such  service  without  the  knowledge  or  consent 
of  the  guarantor,  express  or  implied,  he  cannot  afterwards  have 
recourse  to  the  guarantor  to  make  good  any  loss  which  may  arise 
from  the  dislitjnesty  of  the  servant  during  the  subsequent  service. 
If  the  dishonesty  had  existed  before  the  surety  became  bound, 
and  the  master  had  concealed  it,  the  surety  would  not  have  been 
liable,  and  the  cases  are  the  same  in  principle.  Moreover,  upon 
discovering  the  dishonesty,  the  master  had  a  right  to  discharge 
the  servant,  but  by  continuing  him  in  the  service  he  lost  that 
right.^  But  it  has  been  held  that  the  sureties  on  a  bond  given 
to  an  employer,  conditioned  that  his  employe  will  faithfully  ac- 
count for  all  moneys  and  property  of  the  employer  coming  to  his 
hands,  are  not  discharged  from  subsequent  liability  by  an  omis- 
sion on  the  part  of  the  employer  to  notify  them  of  a  default  on 
the  part  of  the  employe,  known  to  the  employer,  and  a  continu- 
ance of  the  employment  after  such  default,  if  tlie  default  was  not 
occasioned  by  the  fraud  or  dishonesty  of  the  employe.  The  court, 
however,  intimated  that  it  would  have  been  different  if  the  de- 
fault had  been  occasioned  by  the  fraud  or  dishonesty  of  the  em- 
ploye.^ It  has  been  held  that  the  sureties  on  the  bond  of  a  deputy 
sheriff  are  not  discharged  by  the  fact  that  before  the  breacli  com- 
plained of,  they  notified  the  obligee  of  the  deputy's  unfitness  for 
office,  and  requested  his  removal,  which  request  was  not  com- 
plied with.'  The  mere  fact  that  the  obligee  does  not  promptly 
notify  the  surety  of  a  default  of  the  principal  in  an  employment, 
is  not  such  a  concealment  as  will  discharge  the  surety  from  lia- 
bility for  such  default.  "  Mere  passiveness  on  the  j^art  of  the 
creditor  in  not  enforcing  his  remedy  will  not,  of  itself,  discharge 
the  surety,  nor  will  failure  or  neglect  to  give  notice  to  the  surety 
of  the  principal's  defalcation  have  that  effect."  *  Where  a  clerk 
embezzled  his  employer's  money,  and  the  emploj^'er  did  not  no- 
tify the  clerk's  surety  of  such  embezzlement  for  three  years,  it 
was  held  the  surety  was  not  thereby  discharged  from  liability  for 
such  embezzlement;  at  least  if  the  surety  was  acquainted  with  the 

'Phillips  V.   Foxall,    Law    Eep.    7  » Crane  «;.  Newell,  2 Pick.  612. 

Queen's  B.  666;    Sanderson  v.  Aston  *  Pickering  t?.  Day,  3  Houston  (Del.) 

Law  Rep.  8  Exch.  73.  474,  per  Gilpin,  C.  J.;  Planters'  Bank 

^  Atlantic  and  Pacific  Telegraph  Co.  r.  Larakin,  R.  M.  Charlton  (Ga.)  29. 
V.  Barnes,  64  New  York,  3S5. 


496  DISCHARGE    OF   SURETY    BY   FRAUD,    ETC. 

circumstances  from  any  other  quarter,  and  if  the  employer  did 
not  industriously  conceal  it  from  him.'  The  mere  negligence  of 
the  officers  of  a  bank  in  examining  or  checking  the  accounts  of  a 
clerk  or  cashier,  does  not  amount  to  a  fraud  or  concealment,  and 
will  not  discharge  his  surety.^  If  the  president  of  a  bank  gives  a 
certificate  to  one  of  its  clerks  on  dismissing  him  from  service, 
expressing  his  satisfaction  with  the  clerk's  good,  conduct,  it  does 
not  discharge  the  sureties  of  such  clerk  who  have  not  been  preju- 
diced thereby,  if  it  is  afterwards  discovered  that  before  the  giving 
of  such  certificate  the  clerk  had  been  guilty  of  embezzlement.^ 

§  369.  "When  surety  of  employe  of  corporation  not  discharged 
because  by-la-wrs  of  corporation  not  complied  vyith. — Tlie  by-laws 
of  a  corporation  requiring  accounts  or  statements  from  an  em- 
ploye at  stated  periods,  or  providing  that  his  accounts  or  the 
affairs  of  the  corporation  shall  be  periodically  examined  by  other 
officers  of  the  corporation,  are  generall}'  held  to  be  no  part  of  the 
contract  with  the  surety  of  such  employe,  and  if  such  by-laws 
are  not  complied  with,  that  fact  will  not  discharge  the  surety. 
The  by-laws  are  directory  merely,  and  are  made  for  the  benefit  of 
the  corporation,  and  not  of  the  suret}-,  who  becomes  liable  because 
of  his  confidence  in  his  principal,  and  not  in  consequence  of  his 
confidence  in  the  other  officers  of  the  corporation.  Moreover,  if 
the  sureties  of  one  officer  of  a  corporation  could  be  relieved  from 
liability  by  the  neglect  of  duty  of  other  officers  of  the  corjDoration, 
the  corporation  would  be  dej)rived  of  all  remedy.*  Certain  per- 
sons were  sureties  for  the  repayment  by  weekly  instalments  of 
money  borrowed  by  P  of  a  loan  society.  One  of  the  rules  of  the 
society  provided,  "  that  if  any  member  becomes  more  than  four 
weeks  payments  in  arrear,  the  committee  immediately  inform  the 
sureties  of  the  same,  and  have  power  to  institute  legal  pro- 
ceedings against  them."  P  died,  being  more  than  four  weeks  pay- 
ments in  arrear,  but  no  application  was  made  to  his  sureties  un- 
til two  years  afterwards.  Held,  the  sureties  were  liable.  The 
court  said:     "The  rule  is  a  mere  statement  of  the  duty  of  the 

'  Peel  V.  Tatlock,  1  Bos.  &  Pul.  419.  Moms  Canal  &  Banking  Co.  v.  Van 

'  Black  V.  The  Ottoman  Bank,   15  Vorst's   Admx.  1   Zab.   (N.   J.)  100; 

Moore's  Priv.   Con.    Gas.  472;  Atlas  Albany  Dutcli.  Church  v.   Vedder,  14 

Bank  v.  Brownell,  9  Rhode  Isl.  163.  Wend.  165;   Amherst  Bank  v.  Root,  2 

'Union    Bank  r.    Forstall,    6    La.  Met.    (Mass.)    522;     Louisiana  State 

(Curry)  211.  Bank    r.    Ledoux,   3    La.   An.     674; 

*  State   V.   Atherton,   40    Mo.   209;  Mayor  r.  Blache,  3  La.  (Cun-y)  500. 


FAILUEE   TO    COMPLY   WITH    BY-LAWS   OF    COEPOKATIOX.        497 

committee,  and  is  not  obligatory  on  them  as  between  the  society 
and  the  sureties."  '  The  rules  of  a  railway  company  required 
from  the  cashier  monthly  reports  and  payments,  and  the  bond  of 
the  cashier  and  his  sureties  was  conditioned  that  he  should  faith- 
fully discharge  his  duty  as  required  by  the  rules,  "  a  copy  of 
which  he  acknowledged  to  have  received."  The  cashier  neglected 
to  account  and  pay  over  for  six  months,  when  he  was  dismissed, 
and  the  sureties  were  not  notified  of  his  default  for  three  months 
afterwards.  Held,  the  sureties  were  liable  for  the  default.  The 
court  said  that  corporations  can  act  "  only  by  officers  and  agents." 
They  do  not  guaranty  to  the  sureties  of  one  officer  the  fidelity  of 
the  others.  The  rules  and  regulations  which  they  may  establish 
in  regard  to  periodical  payments,  are  for  their  own  security  and 
not  for  the  benefit  of  the  sureties.  *  "  They  (the  sureties)  un- 
dertake that  he  (their  principal)  shall  be  honest  though  all 
around  him  are  rogues.  Were  the  rule  different,  by  a  conspiracy 
between  the  officers  of  a  bank  or  other  moneyed  institution,  all 
their  sureties  might  be  discharged.  " ' 

'  Price  V.  Pool,  3  Hurl.  &  Colt.  437,  « Pittsburg,  Ft.  W.  &  C.  R.  R.  Co. 

per  Bramwell,  B.  v.  ShaefFer,  59  Pa.  St.  350,  per  Shars- 

wood,  J. 


32 


CHAPTER  XYII. 


OF    THE    DISCHARGE   OF   THE    SURETY    OR    GUARANTOR    BY 
THE  CREDITOR  RELINQUISHING  SECURITY  FOR  THE  DEBT. 


370 


371 


Section. 

Surety  discharged  pro  tanto  if 
creditor  relinquish  lien  on  prop- 
erty of  principal  for  payment  of 
the  debt    .... 

Instances  of  discharge  of  surety 
by  creditor  relinquishing  lien  on 
property  of  principal 

Instances  of  discharge  of  surety 
by  creditor  rendering  unavaila- 
ble lien  on  property  of  principal  372 

When  surety  wholly  discharged  by 
creditor  relinquishing  security 
for  debt     .... 

Creditor  must  have  a  lien  on  the 
property  released  in  order  to  dis- 
charge surety     . 

Instances  where  surety  not  dis- 
charged by  creditor  releasing 
property  of  principal 

When  surety  discharged  if  bank 
does  not  retain  debt  due  it  out 
of  deposit  of  principal 


373 


374 


375 


376 


Section. 

When  surety  not  discharged  by 
creditor  releasing  principal  from 
imprisonment    ....  377 

Surety  is  discharged  if  creditor  re- 
lease levy  on  property  of  prin- 
cipal   378 

Instances  where  surety  discharged 
by  release  of  levy  on  property 
of  principal        ....  379 

Surety  not  discharged  unless  in- 
jured by  release  of  levy  on  prop- 
erty of  principal        .        .        .  380 

Surety  discharged  if  creditor  re- 
lease attachment  on  property 
of  principal.  Dismissing  suit 
against  principal        .        .        .  381 

When  surety  discharged  by  fail- 
ure of  creditor  to  cause  execu- 
tion to  be  levied  on  property  of 
principal 382 

When  and  how  far  surety  dis- 
charged by  release  of  co-surety   383 


§  370.  Surety  discharged  pro  tanto,  if  creditor  relinquish  lien 
on  property  of  principal  for  payment  of  the  debt. — If  the  credi- 
tor has  a  surety  for  the  debt,  and  also  has  a  lien  on  property  of 
the  principal  for  the  security  of  the  same  debt,  and  he  relin- 
quishes such  lien,  or  by  his  act  such  lien  is  rendered  unavailable 
for  the  payment  of  the  debt,  the  surety  is,  to  the  extent  of  the 
value  of  the  lien  thus  lost,  discharged  from  liability.  This  rule 
does  not  depend  upon  contract  between  the  surety  and  creditor, 
but  results  from  equitable  principles  inherent  in  the  relation  of 
principal  and  surety.  It  is  equitable  that  the  property  of  the 
principal,  pledged  for  the  payment  of  the  debt,  should  be  applied 
to  that  purpose,  and  it  is  grossly  inequitable  that  in  such  case 

(498) 


KELINQTJISHING   LIEN   DISCHARGES   SUEETT.     *  490 

the  property  should  be  diverted  from  that  purpose,  and  the  debt 
thrown  upon  a  mere  surety.  Upon  obtaining  such  a  lien  the 
creditor  becomes  a  trustee  for  all  parties  concerned,  and  is  bound 
to  apply  the  property  to  the  purposes  of  the  trust.  "When 
such  lien  is  acquired  after  the  surety  becomes  bound,  and  even 
"without  his  knowledge,  the  rule  is  the  same.  The  surety  is  en- 
titled, upon  paying  the  debt,  to  subrogation  to  all  the  securities 
which  the  creditor  may  have  at  any  time  acquired  for  the  pay- 
ment thereof,  and  it  results  as  a  corollary  from  this  proposition, 
that  if  this  right  is  rendered  unavailing  by  the  act  of  the  credi- 
tor, the  surety  is  discharged  to  the  extent  that  he  is  injured.^ 
Where  a  creditor  has  released  a  security  to  the  benefit  of  which 
the  surety  is  entitled,  it  has  been  held  that  the  burden  of  proving 
the  value  of  the  thing  lost,  is  on  the  creditor.  And  where  a  judg- 
ment against  the  principal  was  discharged,  and  there  was  no 
proof  as  to  its  value,  it  was  presumed  to  be  of  its  face  value. 
The  court  said :  "  It  is  right  to  apply  the  general  rule  of  damages 
that  when  the  amount  is  made  incapable  of  estimation  by  the 
act  of  the  wrong  doer,  he  must  be  made  resjtonsible  for  the  value 
it  may  by  reasonable  possibility  turn  out  to  be  of."  ^  If  the 
surety  knows  a  creditor  is  about  to  release  securities  on  which  he 
has  a  right  to  rely,  and  says  nothing,  the  fact  of  his  silence  will 
not  prevent  his  being  discharged  by  such  release,  as  in  such  case 
he  is  not  called  upon  to  speak.'  But  where  such  release  is  made  at 
the  instance  and  request  of  the  surety,  he  is  not  thereby  discharged." 
§  371.  Instances  of  discharge  of  surety  by  creditor  relinquish- 
ing lien  on  property  of  principal. — In  a  leading  case  upoii    this 

1  Willis  V.  Davis,  3  Minn.  17;  Cum-  v.  School  Trustees,  46  111.  428;   Baker 
mings  V.  Little,  45  Me.  183;  Loop  v.  ??.  Briggs,  8  Pick.  122;  Hollands.  John- 
Summers,    3    Rand.  (Va.)  511;    New  son,  51  Ind.  346;  Pledget;.  Buss,  John- 
Hampshire  Savings  Bank  v.  Colcord,  son  (Eng.  Ch.)  663;  contra,  as  to  after 
15  New  Hamp.  119;  Armor  v.  Amis,  acquired    securities,    see    Newton    v. 
A  La.  An.  192;  Wharton  v.  Duncan,  83  Chorlton,  2  Drewry,  333;  Avhere  lien 
Pa  St.  40;  Ives  v.  Bank  of  Lansing-  was  doubtful,  see  Crane  «.  Stickles,  15 
burg,    12  Mich.   361;    Kirkpatrick  v.  Vt.  252;  where  defense  was  set  up  at 
Howk,  80  111.  122;  Finney's  Admrs.  v.  law,  see  Shaw  v.  McFarlane,  1  Ired. 
Commonwealth,  1  Pen.  &  Watts  (Pa.)  Law  (Nor.  Car.)  21:'1. 
240;  Bonney  v.  Bonney,  29  Iowa,  448;  •^  Fielding  v.  Waterhouse,  8  Jones  & 
Hurd  V.   Spencer,  40  Vt.  581;  Barrow  Spen.  (N.Y.)  424,  per  Sedgwick,  J. 
r.  Shields,  13  La.  An.  57;     Strong    v.  ^Polak    v.    Everett,   Law    Rep.     1 
Wooster,  6  Vt.  536;  Foss  v.   City  of  Queen's  B.  Div.  669. 
Chicago,  34  111.  488;  American  Bank  *  Pence  v.  Gale,  20  Minn.  257. 
V.  Baker,  4  Met.  (Mass.)  164;   Rogers 


500  DISCnAKGE   OF   SURETY    BY    KELINQUISHING   SECURITY. 

subject,  Law  became  the  surety  of  Tieniey,  for  his  good  behavior 
as  paymaster  of  the  East  India  Company.  Tierney  died  solvent, 
and  the  company  settled  with  his  legal  representatives,  and  50,.548 
rupees  were  found  by  such  settlement  to  be  due  the  representa- 
tives, and  the  company  paid  that  amount  to  them.  Afterwards 
it  was  ascertained,  that  Tierney  in  fact  died  indebted  to  the  Com- 
pany in  96,857  rupees,  and  the  Company  by  duress  compelled 
Law  to  pay  that  sum  upon  the  eve  of  his  setting  out  from  India. 
L'pon  Law's  arrival  in  England,  he  filed  a  bill  against  the  Com- 
pany, to  recover  the  money.  Held,  he  was  entitled  to  recover 
at  least  to  the  extent  of  the  50,548,  as  paying  the  principal 
that  sum  discharged  the  surety  for  so  much.  The  court  said: 
"Nothing  is  more  clear  than  whether  that  was  done  with 
the  consent  and  by  the  orders  of  the  Company  or  not,  but  ig- 
norantly  by  their  officers,  it  was  as  to  the  two  sureties,  a  com- 
plete discharge.  It  cannot  be  contended  upon  any  principle  that 
prevails  with  regard  to  principal  and  surety,  that  where  theprin- 
pal  has  left  a  sufficient  fund  in  the  hands  of  the  obligee,  and  he 
thinks  fit,  instead  of  retaining  it  in  his  hands,  to  pay  it  back  to 
the  principal,  the  surety  can  never  be  called  upon.  This  pay- 
ment, therefore,  or  permitting  that  part  of  the  assets  to  be  paid 
back  to  the  administrator  of  the  principal  by  the  officers  of  the 
Company,  whether  with  their  consent  or  ignorantly,  is  a  com- 
plete discharge  of  the  two  sureties." '  A  bought  of  B  ten  slaves 
for  $6,750,  for  wdiich  he  gave  his  note,  with  C  as  accommodation 
indorser.  Afterwards  B  re-purchased  of  A  nine  of  the  slaves  for 
$4,675,  and  it  was  held  that  he  tliereby  deprived  C  of  the  right 
of  subrogation  to  the  vendor's  lien  on  the  slaves,  and  discharged 
him.  The  court  said:  "It  is  clear  that  the  defendant  was  an  ac- 
commodation indorser,  and  as  such  merely  a  s'urety  for  the  mak- 
er. It  is  equally  clear,  that  by  the  law  of  suretyship,  there  is  a 
privity  between  the  surety  of  a  debtor  and  the  creditor,  which 
compels  the  latter  to  preserve  all  his  rights  against  the  debtor 
unimpaired  when  he  intends  to  look  to  the  surety  for  payment. 
This  obligation,  on  the  part  of  the  creditor,  is  a  corollary  of  the 
right  of  subrogation,  which  the  law  has  established  in  favor  of 
the  surety,  who  pays  the  debt  of  his  principal.  If  the  creditor 
fails  to  comply  with  this  obligation,  or  does  any  act  which 
destroys  or  impairs  this  right  of  subrogation  to  his  mortgages  or 

'  Per  Master  of  the  Rolls  in  Law  r.  The  East  India  Company,  4  Vesey,  824. 


CREDITOK   EENDEEING    LIEN   UNAVAILING.  501 

privileges,  lie  thereby  releases  the  surety."  '  A  note,  without  sure- 
ty, for  $3,000,  was  secured  by  chattel  mortgage  on  property  of 
the  maker.  When  it  came  due,  the  creditor  advanced  the  prin-: 
cipal  $500  more,  and  a  new  note  for  $3,500,  with  surety,  was 
given,  the  creditor  telling  the  surety  when  he  signed  that  the 
chattel  mortgage  should  stand  security  for  the  new  note.  After- 
wards the  creditor  released  the  mortgaged  property,  and  it  was 
held  that  the  surety  was  thereby  discharged.^  A  agreed  to  fur- 
nish material  and  erect  a  building  for  B,  and  B  agreed  to  pay  A 
various  specified  sums  at  particular  stages  in  the  progress  of  the 
work,  the  remainder  to  be  paid  sixty  days  after  the  completion 
of  the  building,  and  its  acceptance  by  B.  Upon  this  contract, 
C  became  the  surety  of  A.  The  building  was  completed  by  A 
and  accepted  by  B,  and  although  B  received  notice  before  the 
completion  of  the  building  of  the  filing  of  various  mechanics' 
lien  suits  thereon,  yet  he  paid  the  contract  price  to  A  before  he 
was  bound  by  the  contract  to  pay  the  same.  B  afterwards  had 
to  pay  the  liens,  and  sued  C  on  the  contract,  but  it  was  held  he 
could  not  recover,  as  he  had  released  C  by  paying  A.' 

§  372.  Instances  of  discharge  of  surety  by  creditor  rendering 
unavailing  lien  on  property  of  principal. — A  principal  and  two 
sureties  signed  a  note  for  $314.  After  the  note  fell  due,  the 
creditor,  by  the  assistance  of  the  sureties,  induced  the  principal 
to  give  a  chattel  mortgage  to  secure  the  note  on  property  worth 
at  least  $400.  When  the  mortgage  became  due,  the  creditor  took 
possession  of  the  mortgaged  property,  and  sold  it  for  $31  to  a 
party  he  employed  to  bid  for  him.  This  amount  he  credited  on 
the  note,  and  long  afterwards  sued  the  sureties.  Held,  that  by 
wasting  the  property  he  had  discharged  the  sureties,  and  could 
not  recover.  The  court  said:  " It  is  a  well  established  rule  of 
equity  jurisprudence,  that  where  a  creditor  procures  further  secu- 
ity  by  the  pledge  of  j)roperty,  he  becomes  a  trustee  as  to  that  proper- 
ty for  the  sureties  for  the  payment  of  the  debt.  By  his  taking  a 
mortgage  or  other  pledge,  it  enures  to  the  benefit  of  the  sureties 
as  well  as  to  the  creditor.  In  such  case  they  have  the  right  to 
discharge  the  debt,  and  compel  the  creditor  to  transfer  the  mort- 

'  Hereford    v.    Chase,    1    Robinson  Clegge,  8  Ala.  317;  but  this  seems  to 

(La  )  212,   per  Morphy,   J.     Holding  be  a  very  questionable  case, 

that  the  surety  is  not  discharged  by  ^  Port  v.  Robbins,  35  Iowa,  208 

the  surrender  of  an  equitable  vendor's  ^  Taylor  v.  Jeter,  23  Mo.  244. 
lien  on  real  estate,  see  Woodward  r. 


502  DISCHAKGE    OF    SURETY   BY    EELIXQUISHIXG    SECURITY. 

gage  or  pledge  to  them  for  their  indemnity.  TVhere  additional 
security  is  taken,  it  is  regarded  as  an  indemnity  to  both  creditor 
and  the  sureties,  and  any  waste  or  misapplication  of  the  pledge 
operates  as  a  release  to  the  sureties  to  the  extent  of  the  waste  or 
misapplication.  "Where  the  creditor  receives  such  a  pledge,  he 
becomes  a  trustee  for  the  sureties,  and  is  bound  to  observe  the 
duties  that  relation  imposes  as  to  the  trust  property."  '  Where 
the  creditor  willfully  caused  property  mortgaged  by  the  principal 
for  the  payment  of  the  debt  to  be  sold  for  much  less  than  it  was 
worth,  it  was  held  that  the  surety  was  discharged  to  the  extent  of 
the  true  value  of  the  property.'  But  where  property  so  mort- 
gaged was  sold  under  order  of  the  court,  and  bid  in  by  the  cred- 
itor for  less  than  its  value,  and  afterwards  sold  by  him  for  much 
more  than  he  bid  it  in  for,  it  was  held,  that  in  the  absence  of  fraud 
or  improper  practice,  he  was  not  obliged  to  account  to  the  surety 
for  more  than  the  sum  for  which  he  bid  the  property  in.^  Judg- 
ment was  recovered  against  principal  and  surety,  which  was  a  lien 
on  a  slave  of  the  principal  then  in  the  hands  of  the  surety. 
Execution  was  issued,  but  was  "held  up"  by  order  of  the 
creditor.  The  princip?il  then  gave  the  creditor  a  mortgage  on  his 
personal  property,  including  the  slave  above  mentioned,  to  secure 
another  debt.  The  creditor  afterwards  took  posession  of  the  slave 
and  sold  it,  and  it  was  removed  from  the  state.  Held,  the  surety 
was  discharged  to  the  extent  of  the  value  of  the  slave.*  "Where 
the  creditor  makes  an  agreement  by  which  a  securety  is  rendered 
valueless  to  a  surety,  who  is  entitled  to  be  subrogated  in  respect 
thereto,  the  surety  who  has  paid  the  creditor  after  a  judgment 
has  been  obtained  against  him,  in  ignorance  of  such  agreement, 
is  entitled  to  recover  from  the  creditor  the  amount  of  the  de- 
feated security.^ 

§  3(3.  When  surety  wholly  discharged  by  creditor  relinquish- 
ing security  for  debt. — AYhen  by  the  act  of  the  creditor  the  surety 
has  been  deprived  of  the  benefit  of  a  fund  for  the  payment  of 
the  debt,  and  the  contract  by  which  the  surety  is  bound  is  not 
changed,  he  is  only  discharged  to  the  extent  that  he  is  injured,  as 

'  Phares  v.  Barbour,  49  111.  370,  per  by  creditor  relinquishing  security  for 

"  alker,  J.  the  debt,  see  Henderson,  Admr.  v.  Hu- 

-  Everly  v.  Rice,  20  Pa.  St.  297.  ey,  45  Ala.  27-5. 

2  Brown  r.  Gibbons,  37  Iowa,  654.  =  Chester  v.  Bank  of  Kingston,   16 

*  McMullen  v.  Hinkle,  39  Miss.  142.  New  York,  336. 
For  a  case  holding  surety  discharged 


CEEDITOE    MUST    HAVE    LIEN    ON    PEOPEETT   EELEASED.  503 

in  such,  case  it  is  the  fact  that  he  is  injured  which  entitles  him  to 
the  discharge.  But  where  the  creditor  relinquishes  a  security  for 
the  debt,  and  thereby  materially  alters  the  contract,  the  surety  is 
wholly  discharged,  whether  he  is  injured  or  benefited,  because  in 
such  case  it  is  no  lono;er  his  contract.  Thus  A  aorreed  to  redeem 
certain  shares-  for  6,000Z.  within  twelve  months,  and  B  became  his 
surety.  A  at  the  same  time  transferred  to  the  creditor  certain  book 
accounts,  amounting  to  8,000Z.,  with  the  understanding  that  they 
should  be  collected,  and  one  half  the  amount  collected  should  go 
as  payment  on  the  6,0001.  Afterwards  the  creditors,  for  an  equiv- 
alent in  shares  and  cash,  released  to  A  their  interest  in  the  book 
accounts.  "  Held,  this  discharged  B  altogether  from  his  obligation, 
even  though  the  book  accounts  would  only  have  paid  4,OuOZ.  of 
the  6,000/.  if  they  had  all  been  collected.  This  was  put  upon 
the  ground  that  the  contract  for  which  the  surety  became  respon- 
sible, had  been  changed,  and  he  was  thereby  wholly  discharged, 
the  same  as  if  time  had  been  given,  or  any  other  material  alter- 
ation in  the  original  contract  had  been  made.* 

§  374.  Creditor  must  have  a  lien  on  the  property  released  in 
order  to  discharge  surety. — In  order  that  a  suretv  mav  be  dis- 
charged by  the  act  of  tlie  creditor  in  relinquishing  property  in  his 
possession  belonging  to  the  principal,  he  must  have  some  lien  on 
or  interest  in  the  property,  so  that  it  is  charged  with  a  trust  in 
favor  of  the  surety.  If  he  have  no  such  lien  or  interest,  and  is 
not  chargeable  as  trustee,  he  is  under  no  more  les^al  obliffation  to 
retain  the  property  than  he  would  be  to  take  any  other  step  for 
the  collection  of  the  debt;  and  it  is  settled  that  the  mere  passive 
delay  or  inactivitj'  of  the  creditor,  where  he  is  not  chargeable  as 
trustee,  will  not  discharge  the  surety.  Thus,  the  plaintiff  held  a 
promissory  note  indorsed  by  the  defendant  for  the  accommoda- 
tion of  the  makers,  who  were  insolvent.  A  firm  of  which  the 
plaintifi"  was  a  member,  owed  the  makers  a  larger  sum  than  the 
amount  of  the  note  against  which,  if  sued,  the^^  could,  by  statute, 
have  set  off  the  claim  held  by  the  plaintiff.  The  firm,  witli  a 
full  knowledge  of  the  facts,  paid  the  makers  the  amount  due 
them:  Held,  the  indorser  was  not  discharged  thereby.  The  court 
said  that  the  creditor  must  part  with  no  security  for  the  payment 

'Polak  V.    Everett,    Law    Rep.     1      3S6;  Watts  r.  Shuttleworth,   7  Hurl. 
Queen's  B.  Div.  G69.  To  similar  effect,       &  Nor.  353. 
see  LordHai-bertonr.  Bennett,  Beatty, 


50^  DISCHARGE   OF   SURETY   BY    EELIXQUISHIXG    SECURITY. 

of  the  debt;  but  tlie  security  must  be  "a  mortgage,  pledge  or 
lien — some  right  or  interest  in  the  property  which  the  creditor 
can  hold  in  trust  for  the  surety,  and  to  which  the  surety,  if  he  pay 
the  debt,  can  be  subrogated,  and  the  right  to  apply  or  hold  must 
exist  and  be  absolute."  The  plaintiff,  in  this  case  had  no  lien, 
and  the  iudorser  had  no  more  right  to  insist  that  the  set-off  should 
be  made  than  to  insist  that  the  plaintiff  "  should  do  any  other  act 
to  secure  or  enforce  payment." '  A  creditor  held  a  judgment 
against  princijial  and  surety,  and  while  it  was  in  force,  hired  the 
principal  to  remove  some  slaves  for  him.  and  paid  the  principal 
for  his  services:  Held,  no  lien  was  released,  and  the  surety  was 
not  discharged.^  A  agreed  to  build  a  house  for  B  for  $13,000, 
and  was  to  be  paid  when  the  building  was  completed.  Afterward 
A  borrowed  $700  from  B,  and  gave  his  note  for  it  with  surety. 
Afterwards  B  paid  A  more  than  $4,000  on  the  contract  which  A 
never  completed:  Held,  the  surety  on  the  note  was  not  discharged 
because  B  paid  A  the  $4,000  when  he  was  not  obliged  to  do  so. 
The  court  said  that  the  contract  to  build  the  house,  had  nothing 
to  do  with  the  note,  and  no  lien  for  the  payment  of  the  note  had 
been  relinquished,  and  proceeded:  "  I  think  the  surety,  in  order 
to  claim  a  discharge,  must  have  some  connection  or  privity  with 
the  money  paid  over  or  security  parted  from,  and  I  perceive  none 
here.  It  would  embarrass  the  affairs  of  men  too  much  for  the 
practical  purposes  of  life  and  of  business,  to  say  that  one  holding 
a  note  on  two  should  not  voluntarily  pay  a  note  due  by  him  to 
one  of  them,  and  that  is  substantially  this  case,"  ^  A  party  gave 
his  note  with  an  indorser  for  certain  stock  of  a  lire  insurance  com- 
pany, the  charter  of  which  provided  that  it  might  at  its  option 
prohibit  the  transfer  of  the  stock  and  retain  the  dividends  of  any 
stockholder  who  was  indebted  to  it.  The  principal  sold  his  stock, 
and  it  was  transferred  on  the  books  of  the  company  without  the 
note  being  paid,  and  it  was  held  the  surety  was  not  thereby  dis- 
charged. The  court  said  that  whenever  the  creditor  has  the 
means  of  satisfaction  in  his  hands  and  chooses  not  to,  and  does 
not  retain  it,  he  discharges  the  surety,  but  the  "  means  of  satis- 
faction in  his  hands"  means  that  "there  must  be  a  lien  in  his 
favor  on  the  property   in  his   hands   conferred  by  law  or  the 

'  Glazier  r;  Douglass,  32  Ct.  393,  per  « jjoUij-.gswortli   r.  Tanner,  44  Ga. 

Butler,  J,  11. 

» Beaubien  r.  Stoney,  Speers  Eq.  (So.  Car.)  508. 


EELEASIXG   PEOPEETT   OF    PEIXaPAL.  505 

owner.*' '  The  surety  on  a  negotiable  note  which  was  not  due 
became  insolvent,  and  the  creditor  applied  to  the  principal  to  get 
other  security,  which  the  principal  furnished  by  giving  a  mort- 
gage on  real  estate  suflficient  to  secure  the  note.  At  the  time  the 
mortgage  was  given,  it  was  agreed  between  the  principal  and 
creditor  that  it  should  be  released  upon  the  principal  getting  an- 
other satisfactory  indorser  on  the  note.  Afterwards,  and  before 
the  note  became  due,  the  principal  procured  another  and  respon- 
sible indorser,  who  indorsed  his  name  after  that  of  the  surety,  and 
the  creditor  thereupon  released  the  mortgage.  Held,  the  surety 
was  not  thereby  discharged,  as  the  creditor  had  no  right  to  retain 
the  mortgage  after  the  indorser  had  been  procured.^  It  has  been 
held  that  a  surety  for  a  bankrupt  is  not  discharged  by  the  credi- 
tor signing  the  bankrupt's  certificate,  even  after  notice  from  the 
surety  not  to  do  so.^ 

§  375.  Instances  -where  surety  not  discharged  by  creditor  re- 
leasing property  of  principal. — If  the  release  of  the  property  of 
the  principal  does  not  have  the  effect  of  changing  the  contract, 
and  does  not  injure  the  surety,  his  liability  is  not  affected 
thereby.  Thus,  a  creditor  having  a  judgment  against  principal 
and  surety,  which  was  a  lien  on  real  estate  of  the  principal, 
agreed  to  release  part  of  such  real  estate  in  order  to  make  a  title 
to  one  who  purchased  it  for  its  full  value,  upon  condition  that  the 
purchase  money  should  be  applied  to  the  extinguishment  of  a 
mortgage  which  was  a  prior  lien  upon  the  whole  estate,  such  ap- 
plication of  the  money  was  made,  and  the  remainder  of  the  real 
estate  released  from  the  lien  of  the  mortgage.  Held,  the  surety 
was  not  discharged,  as  the  release  of  the  land  bettered  his  condi- 
tion rather  than  otherwise.*  After  a  surety  became  liable,  the 
creditor  obtained  from  the  principal  a  policy  of  insurance  on  his 
life  as  a  security  for  the  debt.  The  principal  became  bankrupt, 
and  the  creditor  surrendered  the  life  policy  upon  receiving  from 
the  office  from  which  it  was  issued,  its  then  value.     Held,  the 

'  Perrine  r.  Firemen's  Ins.  Co.  22  charging^  the  surety,  purchase  prop- 
Ala.  57-5,  per  Phelan,  J.  erty  of  the  principal  and  pay  him  for 

*  Pearl    Street    Congregational  So-  it  before  the  note    upon  which  the 

ciety  r.  Imlay,  23  Ct.  10.  surety  is  liable  becomes  due,  see  Hig- 

» Browne  r.  Carr,  7  Bing.  503;  Id.  5  don  r.  Bailey,  26  Ga.  426. 

Moore  (k  Payne,  497;  Guild  r.  Butler,  *Neff's  Appeal,   9  Watts  &  Serg. 

5,   The  Reporter,   15.    To  the  effect  (Pa.)  36. 
that  the  creditor  may,  without  dis- 


506  DISCIIAKGE   OF   SURETY   BY    RELINQUISHING    SECURITY. 

surety  was  not  discharged,  as  it  was  doubtful  whetlier  the  policy- 
would  liave  been  kept  up,  and  to  have  kept  it  up  would  have 
been  a  speculation  which  might  have  turned  out  unfavorably  for 
the  surety.*  If  the  security  is  worthless  when  given  by  the  prin- 
cipal, or  afterwards  without  fault  on  the  part  of  the  creditor 
becomes  worthless,  this  does  not  discliarge  the  surety."'^  If  a 
creditor  release  from  the  operation  of  a  judgment,  lands  in  which 
it  is  thought  the  principal  may  hate  some  contingent  interest,  in 
order  to  relieve  the  premises  from  a  possible  cloud  arising  there- 
from, this  does  not  exonerate  the  surety  where  it  is  shown  that 
the  principal  has  in  fact  no  interest  in  the  lands  so  released, 
and  that  the  judgment  was  in  consequence  no  lien  upon  such 
lands.  "Wliere  a  mortgage  was  given  by  a  principal  to  secure 
seven  bonds,  one  of  which  was  assigned  to  a  third  party,  and 
the  holder  of  the  other  six  released  the  mortgage,  it  was 
held  that  the  surety  on  the  assigned  bond  was  not  thereby 
released  from  liability  on  such  bond.  The  assignee  had 
done  nothing  to  prejudice  the  surety's  rights,  and  it  was 
questionable  whether  the  holder  of  the  six  bonds  could  release 
the  mortgage  as  to  the  assigned  bond."  Principal  and  surety 
signed  a  bond,  and  the  principal  gave  a  mortgage  to  secure  it. 
Afterwards  the  principal  agreed  to  give  the  creditor  a  different 
secmnty,  and  the  creditor  delivered  up  the  mortgage,  and  agreed 
to,  but  did  not  deliver  up  the  bond.  The  principal  died,  and  the 
creditor  sued  the  surety,  who  filed  a  bill  to  have  the  bond  deliv- 
ered up.  Held,  he  was  not  entitled  to  i-elief  in  equity.  The 
court  said:  "  Here  the  defendant  was  shipwrecked,  and  had  this 
plank  to  save  him,  and  '"  (the  court)  w^ould  not  take  this  from 
under  him,  to  let  him  sink,  and  make  him  lose  his  debt."* 
The  lessor  of  premises  refused  the  offer  of  the  lesseej^  to  allow 
him  to  collect  rent  from  the  under  tenants  of  the  premises,  and 
apply  it  on  the  accruing  rent,  without  notifying  the  sureties  of 
the  lessees  of  such  offer.  Held,  the  sureties  were  not  thereby 
discharged,  as  the  lessor  was  under  no  obligation  to  undertake 

'  Coates  V.  Coates,  33  Beavan,  249.  Adams     v.    Logan,   27    Gratt.   (Va.) 

^Ilaidwick  v.  Wright,  35  Beavan,  201. 

133.  4  jviulier  v.  Wadlington,  5  Richard- 

'Blydenburgh     r.     Bingham,     38  son  N.  S.  (So.  Car. )  342. 

New  York,  371.    To    similar   effect,  ^Purefoy  v.  Jones,  Freeman's   Ch. 

see    Lilly  v.    Roberts,    58    Ga.   363;  44,  per  Finch,  C. 


BANK  FAILING   TO    RETAIN   DEPOSIT.  507 

the  collection  of  tlie  rent  from  the  under  tenants.^  A  judg- 
ment was  recovered  against  principal  and  surety,  which  became  a 
lien  on  real  estate  of  the  principal.  Afterwards,  the  creditor 
brought  suit  on  the  judgment,  against  both  principal  and  surety, 
and  judgment  was  had  against  the  principal,  and  the  case  was 
continued  as  to  the  surety.  The  surety  then  filed  an  amended 
answer,  setting  up  that  by  the  last  judgment  the  lien  of  the  first 
had  been  lost,  and  other  liens  had  intervened,  but  it  was  held  to 
be  no  defense.  The  court  said  tliat  when  the  surety  assumed  his 
obligation,  he  knew  that  the  remedies  provided  by  law  might  be 
enforced.  If,  in  the  second  suit,  judgment  had  been  rendered 
gainst  the  principal  and  surety  at  the  same  time,  the  surety  could 
not  have  set  up  the  defense,  because  it  would  not  then  have  ex- 
isted, and  the  effect  of  the  second  judgment  would  have  been  the 
same.    The  surety  was  not,  therefore,  prejudiced.'* 

§  376.  When  surety  discharged  if  bank  does  not  retain  debt 
due  it  out  of  deposit  of  principal. — Principal  and  surety  were  in- 
debted to  a  bank  on  a  note  which  was  due.  The  principal  depos- 
ited with  the  bank  more  than  the  amount  of  the  note,  upon  the 
express  agreement  that  he  should  buy  cattle  and  check  against 
this  money  to  pay  for  them,  and  that  the  checks  should  be  paid. 
Tliis  was  done,  and  the  surety  claimed  to  be  discharged  because 
the  bank,  liaving  money  enough  in  its  possession  to  pay  the  note, 
had  not  kept  it.  Held,  the  surety  was  not  discharged,  because 
the  money  having  been  deposited  under  a  special  agreement,  the 
bank  had  no  lien  on  it  and  could  not  divert  it  from  the  purpose 
agreed  upon.'  In  this  case  the  deposit  was  special,  but  where  the 
principal  has  a  genei*al  balance  at  a  bank  after  a  debt  to  the  bank 
is  due,  the  authorities  differ  as  to  the  duty  of  the  bank  to  retain 
the  amount  of  the  debt.  Thus  principal  and  surety  were  lia- 
ble on  a  bill  of  exchange  held  by  a  bank.  "When  the  bill  be- 
came due,  and  for  a  long  time  thereafter,  the  principal  had  money 
in  the  bank  where  he  deposited  and  drew  out  money  from  time  to 
time,  and  at  one  time,  after  the  bill  was  due,  a  balance  was  struck 
between  the  bank  and  the  principal,  and  he  had  more  than  enough 
money  in  the  bank  to  pay  the  bill.     Held,  the  surety  was  not  dis- 

'Ducker  v.   Rapp,  9  Jones  &  Speii-  on  a  note  when  it  is   deposited   in  a 

cer  (N.Y.)  235.  bank  for  a  special  purpose,  see  Ne- 

^  Perry  r.  Saunders,  36  Iowa,  427.  ponset  Bank  v.  Leland,  5  Met.  (Mass.) 

» Wilson  V.  Dawson,  52  Ind.  513.  To  259. 
a  similar  effect,  with  reference  to  lien 


508         DISCHAKGE   OF    SURETY   BY    RELINQUISHING    SECURITY. 

charged  by  tlie  failure  of  the  bank  to  retain  the  money  to  pay 
tlie  bill.  The  court  said  that  mere  delay  would  not  discharge  the 
surety,  and  if  the  bank  was  under  no  obligation  to  sue,  it  was  un- 
der no  "  obligation  to  violate  the  terms  on  which  the  money  was 
obviously  placed  in  the  bank,  and  apply  it  to  the  payment  of  the 
bill  for  the  benefit  of  the  indorsers."  The  money  was  placed  in 
the  bank  for  the  payment  of  the  checks  of  depositors,  and  the 
failure  of  the  bank  to  retain  it  "  was  no  more  to  the  prejudice  of  the 
indorsers  than  their  forbearing  to  sue  the  principal."  ^  In  a  case 
M'here  precisely  the  opposite  doctrine  was  held,  the  court  said: 
"  Upon  M'hat  yjrinciple  of  justice  can  such  a  creditor  in  a  court 
of  equity  claim  to  hold  the  surety  bound,  after  the  debt  had  been 
in  point  of  fact,  paid,  if  the  creditor  had  elected  to  say  so,  or  to 
so  consider  it.  The  creditor  could,  have  set  ofi"  the  debt  and 
charged  it  in  the  account,  and  having  the  power,  was  it  not  his 
duty  to  do  so  in  justice  to  the  surety  ? "  * 

§  377.  When  surety  not  discharged  by  creditor  releasing 
principal  from  imprisonment. — As  a  general  rule,  the  surety  is 
not  discharged  by  the  mere  fact  that  the  creditor  releases  the 
principal  from  imprisonment  on  account  of  the  debt,  unless 
he  is  injured  thereby.  The  body  of  a  principal  was  taken  on  final 
process,  and  he  was  about  to  be  committed  to  jail,  but  was,  by  the 
advice  and  consent  of  a  guarantor  of  the  debt,  released  from  cus- 
tody. Held,  that  while  the  discliarge  w^as  a  technical  satisfac- 
tion of  the  debt,  as  between  the  principal  and  creditor,  j-et  it  was 
not  a  payment  in  fact,  and  did  not  discharge  the  guarantor.  "  The 
terms  of  the  guaranty  are  that  the  note  shall  be  paid,  and  noth- 
ing short  of  actual  payment,  or  some  act  or  neglect  of  the  creditor, 
by  which  the  guarantor  is  prejudiced,  will  discharge  the  liability."  ^ 
A  surety  is  not  discharged  by  the  mere  acceptance  by  the  obligee 
of  a  common  appearance,  where  the  principal  has  been  arrested 
at  the  suit  of  the  obligee,  and  where,  in  consequence  of  the  re- 
lease of  the  principal  from  imprisonment,  he  assigns  all  his 
property  to  the  obligee  for  the  payment  of  the  obligation,  and  it 
is  applied  to  that  purpose.  If  the  principal  had  gone  to  jail,  and 
been  discharged  under  the  insolvent  act,  the  property  would  have 
been  divided  among  his  creditors,  'and  less  would  have  gone  to 

'  Martin  r.  Mechanics  Bank,  6  Harr  r.   German  American  Bank,   83    111. 

&  Johns,  (Md.)  235,  per  Buchanan,  J.  599. 

"McDowell  !;.  Bank,  1    Harrington  ^Xerrell  r.  Smith,  8  Cfc.  426,  per  Bis- 

(Del.)  369,  per  Black,  J. ;  see  also,  Voss  sell,  J. 


RELEASE  OF  LEVY  ON  PKOPEETY  OF  TKIKCIP^U^.       509 

the  payment  of  the  obligation  than  was  realized  for  that  ]:»urpose. 
The  surety  was  therefore  benefited,  and  not  injured/  The  body 
of  the  principal  in  a  bond,  having  been  taken  on  final  process, 
the  creditor,  with  the  principal's  consent,  discharged  him  from 
custody  under  the  provisions  of  a  statute  which  authorized  a 
plaintiff  to  discharge,  with  his  consent,  a  debtor  in  custody  un- 
der a  ca.  sa.,  without  weakening  the  force  of  the  judgment,  or 
impairing  the  right  to  afi.Ju.,  or  a  subsequent  ca.  sa.  Held,  the 
surety  had  not  been  in  any  manner  injured,  and  was  not  dis- 
charged.'' A  special  act  of  congress  released  a  principal  from 
imprisonment  upon  his  assigning  all  his  estate  to  the  United 
States,  for  the  security  of  the  debt  upon  which  he  was  impris- 
oned, and  also  provided  that  any  estate  which  he  might  after- 
wards acquire,  might  be  taken  the  same  as  if  he  had  not  been 
released.  Held,  the  surety  was  not  discharged.  The  court  said : 
"  That  the  same  rules  of  contract  are  applicable  where  the  sover- 
eign is  a  party,  as  between  individuals,  is  admitted;  but  the  right 
of  the  sovereign  to  discharge  the  debtor  from  imprisonment, 
without  releasing  the  deb^,  is  clear.  And  how  can  such  a  release 
discharge  the  surety?  *  The  recourse  of  the  government  against 
the  property  of  *  (the  principal),  still  remains  unimpaired, 
consequently  the  judgment  remains  unsatisfied,  and  no  act  has 
been  done  to  the  prejudice  of  the  surety." ' 

§  378.  Surety  is  discharged  if  creditor  release  levy  on  property 
of  principal. — If  the  creditor  recovers  a  judgment  against  prin- 
cipal and  surety,  or  against  the  princi|)al  alone,  and  execution  is 
issued  thereon  and  levied  upon  real  or  personal  property  of  tlie 
principal  subject  thereto,  and  such  property  is,  by  act  of  the  cred- 
itor, released  from  the  levy  and  lost  as  a  security,  the  surety  is 
discharged  to  the  extent  that  he  is  injured  thereby.''     This  is  the 

^Commissionersof  Berks  Co.  r.  Ross,  R.  247;  Cooper  t?.  Wilcox,  2  Devereux 

3  Binney  (Pa.)  620.  &  Bat.  Eq.  (Nor.  Car.)  90;  Morley  v. 

''Treasurers  v.   Johnson,  4  McCord  Dickinson,  12Cal.  561;  State  Bank  v. 

Law  (So.  Car.)  458.  Edwards.  20  Ala.  612;  People  v.  Chis- 

'  Hunter  v.  United  States,  5  Peters,  holm,  8  Cal.  29;  Spencer  v.  Thompson, 

173,  per  M'Lean,  J.     To  similar  effect,  6  Irish  Com.  Law  Rep.  637;  Winston 

see  United  States  v.  Stansbury,  1  Pe-  t'.  Yeargin,  50  Ala.  340;   Comstock  v. 

ters,  573;    Hunt  v.  United  States,   1  Creon,  1  Robinson  (La.)  528;   Alexan- 

Gallison,  32;  United  States  v.  Sturges,  der  r.  Bank  of  Commonwealth,  7  J.  J. 

1  Paine,  525.  Marsh.  (Ky.)  580;  Bank  v.  Fordyce,  9 

^ Dixon  V.  Ewing's  Admrs.  3  Ohio,  Pa.  St.  275;  Moss  v.  Pettengill,  3  Minn. 

280;  Houston  v.  Hurley,   2  Del.   Ch.  217;  Shannon  v.  McMullin,  26  Gratt. 


510  DISCHARGE   OF   SURETY   BY   RELINQUISHING    SECURITY. 

most  frequently  occurring  illustration  of  tlie  rule  that  the  surety 
is  entitled  to  the  benefit  of  all  the  securities  which  the  creditor, 
after  the  surety  becomes  bound,  or  at  any  time,  may  obtain  for 
the  payment  of  the  debt.  The  creditor  is  not  bound  to  be  dili- 
gent in  obtaining  securities  for  the  debt,  but  having  obtained 
them,  he  at  once  becomes  a  trustee  thereof  for  all  parties  concerned. 
In  a  leading  case  on  this  subject,  the  creditor  held  a  warrant  of 
attorney  from  the  principal  to  confess  judgment,  of  which  the 
surety  did  not  know,  and  the  creditor  entered  up  judgment 
thereon,  and  levied  on  chattels  of  the  principal  sufficient  to  sat- 
isfy the  debt,  and  afterwards  withdrew  the  execution,  and  the 
property  was  lost  as  security:  Held,  the  suret}'^  was  thereby  dis- 
charo-ed.     The  Lord  Chancellor  said:    "The  mere  circumstance 

CD 

that  the  *  (surety)  did  not  know  that  the  *  (creditor) 
held  a  warrant  of  attorney  would  be  of  no  consequence,  be- 
cause sureties  are  entitled  to  the  benefit  of  every  security  which 
the  creditor  had  against  the  principal  debtor,  and  whether  the 
surety  knows  the  existence  of  those  securities  is  immaterial,  and 
I  think  it  clear,  that  though  the  credftor  might  have  remained 
passive,  if  he  chose,  yet  if  he  takes  the  goods  of  the  debtor  in 
execution,  and  afterwards  withdraws  the  execution,  he  discharges 
the  surety  both  at  law  and  in  equity.  ""  The  principle  is  that 
he  is  a  trustee  of  his  execution  for  all  parties  interested.'"  If 
the  creditor  releases  the  lien  of  a  judgment  or  execution  on  the 
23roperty  of  the  principal,  the  surety  wnll  be  released,  even 
though  the  creditor  did  not  at  that  time  know  the  feet  of  surety- 
ship. "With  reference  to  this,  it  has  been  said  that  it  is  the  fact 
of  the  relation  of  principal  and  surety  "with  or  without  the 
creditor's  knowledge  of  it,  that  gives  the  right  of  substitution. 
The  right  is  inherent  in  the  transaction,  if  the  relation  exists. 
*     While  the  law  enforces  the  payment  of    *     (the  creditor's) 

(Va.)  211;  Commonwealth  v.  Miller's  210;   Davis  v.  Mikell,  1  Freem.  Ch.  R. 

Admrs.  8  Serg.  &   Rawle  (Pa.)  452;  (Miss.)  548;  Jenkins  v.  McNeese,   34 

Baird  v.  Rice,  1  Call.  (Va.)  18;     Fin-  Texas,  189;  Jones  v.  Bullock,  3  Bibb, 

ley?'.  King,  1  Head  (Tenn.)  123;   Mul-  (Ky.)  467;  Springer  v.  Toothakcr,  43 

ford  V.  Estudillo,  23  Cal.  94;  McHaney  Me.  381;  Watson  v.  Read,  1  Cooper's 

V.  Crabtree,  6  T.   B.  Mon.  (Ky.)  104;  Ch.   R.   (Tenn.)    196;    contra,    Union 

Brown    v.  Exrs.  of  Riggins,   3  Kelly  Bank  v.  Govan,    10  Smedes  &   Mar. 

(Ga.)  405;  Mellish  v.  Green,  5  Grant's  (Miss.)  333. 

Ch.  R.  655;  Cm-an  t>.  Colbert,  3  Kelly  'MayhewtJ.  Crickett,  2  Swanston, 

(Ga.)  239;  Parker  v.  Nations,  33  Texas,  185,  per  Lord,  Eldon  C. 


EELEASE  OF  LEVY  ON  PEOPERTY  OF  PEINCIPAL.      511 

claim,  it  does  not  make  his  will  tlie  law  of  the  contract,  and  al- 
low him  to  shift  the  burden  from  the  property  of  one  defendant 
to  that  of  the  other,  at  his  pleasure.  ISTor  may  he  blindly  act  so 
as  to  affect  the  rights  of  others,  and  then  excuse  himself  by  say- 
ing he  did  not  know,  lie  should  not  in  any  way  discharge  one  of 
his  joint  debtors  without  the  assent  of  the  other,  for  that  other 
has  an  interest  in  that  act.  The  knowledge  of  the  *  (creditor) 
of  the  fact  of  suretyship,  was  therefore  immaterial." '  It  has 
been  held  that  if  the  creditor  releases  from  the  lien  of  a  judg- 
ment sufficient  real  estate  of  the  principal  to  pay  the  debt,  he 
thereby  discharges  the  surety,  even  though  there  remains  enough 
real  estate  of  the  principal,  subject  to  the  lien  of  the  judgment, 
to  pay  it.  To  hold  the  surety  liable  in  such  case,  would  be  throw- 
ing the  risk  entirely  upon  him.  He  is  discharged  to  the  extent 
of  the  value  of  the  property  released.^  It  has  been  held  that  if 
the  sheriff,  without  direction  from  the  creditor,  releases  personal 
property  of  the  principal  which  he  has  levied  on,  the  surety  is 
discharged  J9r6>  tanto,  and  that  the  act  of  the  sheriff  in  this  re- 
gard, is  the  act  of  tiie  cr^itor.^  It  has  also  been  held  that  the 
return  of  a  sheriff  indorsed  on  an  execution,  which  states  that 
the  execution  had  been  "  held  up "  by  order  of  the  creditor,  is 
no  evidence  of  that  fact." 

§  379.  Instances  •where  surety  discharged  by  release  of  levy 
on  property  of  principal. — A  sheriff  levied  on  property  of  a  prin- 
cipal debtor  sufficient  to  satisfy  the  execution,  and  by  negligence 
and  unreasonable  delay,  released  the  levy  and  became  responsible 
to  the  creditor.  He  then  paid  the  creditor,  and  took  from  him 
an  assignment  of  the  judgment  to  himself,  and  levied  it  on 
property  of  the  surety.  Upon  a  bill  filed  by  the  surety  to  enjoin 
proceediifgs  against  himself,  it  was  held  that  he  was  discharged.* 
A  joint  judgment  having  been  obtained  against  princij)al  and 
surety,  execution  was  issued  and  became  a  lien  on  sufficient  per- 
sonal property  of  the  principal  to  pay  the  debt,  but  no  levy  was 
made.     The  creditor,  under  color  of   a  fraudulent  assignment 

'  Holt  V.  Bodey,   18  Pa.  St.  207.  per  To  a  contrary  effect,   see  Summerhill 

Lowrie,  J.;  Martin  ?;.  Taylor,   8  Bush  v.    Trapp,    48  Ala.   363.     See,    also, 

(Ky.)  384;    Irick  v.   Black,   2  C.   E.  Wright  v.  Watt,  52  Miss.  634. 

Green,  (N.  J.)  189.  ^Shannon  v.   McMullin,  25  Gratt. 

^  Holt  V.  Bodey,  18  Pa.  St.  207.  (Va.)  211. 

^Lumsden  v.  Leonard,  55  Ga.  374.  *  Miller  v.  Dyer,  1  Duvall  (Ky.)  263. 


512  DISCnAKGE   OF   SUEETT    BY   RELINQUISHING   SECURITY. 

from  the  principal,  took  this  property  out  of  the  county,  and  be- 
yond tlie  reach  of  execution,  and  appropriated  the  proceeds  to 
liimself,  his  object  being  to  collect  the  judgment  from  the  surety. 
Held,  the  surety  was  discharged  from  the  judgment.'  In  another 
case  judgment  was  recovered  against  principal  and  suret}',  and 
property  of  the  principal,  sufficient  to  satisfy  the  judgment,  was 
levied  on.  Afterwards  D,  a  creditor  of  the  principal,  took  a 
mortgage  on  the  same  property  from  the  principal,  and  paid  the 
judgment  creditor  the  amount  due  on  the  judgment,  and  took  an 
assignment  of  it  from  him.  D  then  released  the  levy  and  sold 
the  property  under  his  mortgage,  and  proceeded  against  the  sure- 
ty on  the  judgment.  Upon  bill  filed  by  the  surety  to  restrain 
proceedings  on  the  judgment,  it  was  held  he  was  discharged. 
The  court  said:  "The  surety  is  entitled  to  the  benefit  of  every 
additional  or  collateral  security  which  the  creditor  gets  into  his 
hands  for  the  debt  for  which  the  surety  is  bound,  as  soon  as  such 
a  security  is  created,  and  by  whatever  means  the  surety's  interest 
in  it  arises;  and  the  creditor  cannot  himself,  nor  by  any  collusion 
with  the  debtor,  do  any  act  to  impair  the  security  or  destroy  the 
surety's  interest." '  Principal  and  surety  confessed  a  judgment 
which  became  a  lien  on  land  of  the  principal  sufficient  to  pay  the 
debt.  Afterwards  the  principal  sold  the  land  to  D,  and  afterwards 
the  creditor  sold  the  judgment  to  D,  who  endeavored  to  revive  it 
against  the  surety.  Held,  the  surety  was  discharged,  and  the 
judgment  could  not  be  revived  against  him.^  Judgment  having 
been  recovered  against  a  principal,  and  B  and  C,  who  were  sure- 
ties, an  execution  was  levied  on  the  property  of  B.  Pending  the 
levy,  A  bought  this  property  from  B,  and  afterwards  obtained  an 
assignment  of  the  judgment,  the  whole  amount  of  which  he  en- 
deavored to  have  satisfied  out  of  C's  property.  HeM,  equity 
would  restrain  him  from  collecting  from  C  more  than  the  fair 
proportion  of  the  debt,  whether  he  had  notice  of  the  lien  of  the 
execution  wlien  he  bought  the  judgment  or  not.*  Equity  will,  at 
the  instance  of  the  surety,  enjoin  the  creditor  from  releasing  a 
levy  on  property  of  the  principal,  and  this  whether  the  principal 
is  insolvent  or  not.  The  ground  of  relief  in  such  case  is  that  the 
property  of  the  principal  should  pay  the  debt.     The  insolvency 

'  Robeson  v.  Roberts,  20  Ind.  155.  ^  Wright  v.  Knepper,  1  Pa.  St.  361. 

'  Nelson  v.  Williams,  2  Dev.  &  Bat.  "  Dobson  v .  Prather,  6  Ired.  Eq.  (Nor. 

Eq.  (Nor.  Car.)  118.  Car.)  31. 


SUKETY   NOT   DISCHAKGED    UNLESS   INJURED.  513 

of  the  principal  raiglit  quicken  the  action  of  the  court,  but  is  not 
necessary  to  relief.^ 

§  oSO.  Surety  not  discharged  unless  injured  by  release  of 
levy  on  property  of  principal. — As  a  general  rule,  the  liability 
of  the  surety  is  not  affected  by  the  release  of  a  levy  on  property 
of  the  principal  unless  he  is  injured  thereby.  Thus,  where  a 
surety  had  a  mortgage  for  his  indemnity  on  the  property 
which  was  released  from  the  levy,  it  was  held  that  he  was 
not  discharged  by  such  release,  as  his  mortgage  remained  in 
force,  and  he  was  not  injured."  So  where  real  estate  of  a  prin- 
cipal was  levied  on,  and  after  two  or  three  postponements,  the 
execution  was  returned  by  order  of  the  plaintiff  without  a  sale 
being  made,  but  the  lien  of  the  judgment  on  the  real  estate  still 
subsisted,  and  it  did  not  appear  that  any  loss  had  hapi3ened  by 
the  return  of  the  execution,  it  was  held  the  surety  was  not  dis- 
charged. There  was  no  loss  of  a  security,  but  simply  a  giving  of 
time  without  any  agreement  to  do  so.^  Execution  was  issued 
against  a  principal,  and  property  of  his  worth  $90  was  levied  on 
He  then  gave  the  creditor  an  order  for  $100  on  his  wife's  interest 
in  her  father's  estate,  which  was  good  for  that  amount,  and  could 
not  have  been  reached  by  the  execution,  and  in  consideration 
thereof  the  creditor  released  the  levy.  Held,  the  surety  was  not 
discharged,  because  he  was  benefited  by  the  transaction.*  Where 
real  estate  of  the  principal  was  levied  on,  the  boundaries  of  part 
of  which  were  so  undefined  that  a  suit  in  chancery  was  necessary 
to  establish  them,  and  the  remainder  of  which  was  incumbered, 
but  not  for  its  full  value,  it  was  held  that  tlie  surety  was  not  dis- 
charged b}'  a  release  of  the  levy.  The  court  said:  "The  law  im- 
poses no  duty  on  the  judgment  creditor,  to  encounter  the  ex- 
pense or  delay  of  a  suit  in  chancery  to  ascertain  incumbrances, 
or  define  boundaries  of  his  debtor's  lands."  *  An  execution  was 
levied  upon  partnership  property  to  satisfy  a  debt  due  from  one 

'  Irick  V.  Black,  2  C.  E.  Green  (N.  J.)  »  Sasscer  v.  Young,  6  Gill  &  Johns. 

189.  (Md.)243. 

2  Glass  V.  Thompson,  9  B.  Mon.  (Ky.)  *  Thomas'  Exr.  v.  Cleveland,  33  Mo. 

235;  Stringfellow  v.  Williams,  6  Dana      126. 

(Ky.)  236;  see,  also,  for  a  peculiar  case  ^  Commercial  Bank  t\  Western  Ee- 

on  this  subject,  Bartlow  r.    Boude,  3      serve  Bank,  11  Ohio,  444,  per  Lane,  C. 
Dana   (Ky.)   591;    see,   also,  Lilly  v.      J. 
Roberts,  58  Ga.  363;  Adams  v.  Logan, 
27  Gratt.  (Va.)  201. 
33 


514  DISCHARGE   OF   SUEETT   BY    RELINQUISHING    SECURITY. 

of  the  partners,  but  the  creditor  finding  that  the  extent  of  the 
firm  liabilities  were  so  great  that  nothing  could  be  realized  from 
the  levy,  abandoned  it.  Held,  he  might  adopt  this  course,  but  bj 
so  doing  he  took  upon  himself  the  responsibility  of  establishing 
the  facts  of  the  insufficiency  of  the  property,  if  any  surety  or 
party  standing  in  that  relation,  should  question  the  propriety  of 
the  release.'  It  has  been  held  that  the  mere  fact  that  personal 
property  of  the  principal  sufficient  to  satisfy  the  debt,  has  been 
levied  on  but  not  sold,  for  want  of  bidders,  does  not  discharge  the 
surety.''  If  a  surety,  after  he  has  been  discharged  by  the  release 
of  a  levy  on  property  of  the  principal,  jDromises  to  pay  the  debt 
M'ith  knowledge  of  the  facts,  but  without  any  new  consideration 
he  is  bound.^ 

§  3S1.  Surety  discharged  if  creditor  release  attachment  on 
property  of  principal — Dismissing  suit  against  principal. — If  the 
creditor  levies  an  attachment  upon  property  of  the  principal,  and 
afterwards  releases  it,  this  will  have  the  same  effect  to  discharge 
the  surety  as  the  release  of  any  other  lien  on  the  property  of  the 
principal  for  the  payment  of  the  debt.  Thus,  a  city  treasurer 
became  a  defaulter,  and  the  city  levied  an  attachment  on  proper- 
ty of  his  almost  sufficient  to  satisfy  the  debt.  Another  party 
intervened,  claiming  the  property  as  partner  of  the  defaulter. 
The  matter  was  left  to  a  referee  under  an  agreement  that  his  de- 
cision should  be  the  judgment  of  the  court.  He  decided  that 
the  intervenor  was  entitled  to  the  greater  portion  of  the  prop- 
erty, and  it  was  turned  over  to  him.  In  a  suit  on  the  treasurer's 
bond  against  his  surety,  it  was  held  that  the  intervenor  was  not 
entitled  to  the  property,  and  the  attachment  was  the  first  lien  on 
it,  and  that  giving  up  the  property  was  an  act  of  the  creditor 
which  discharged  the  surety  to  the  extent  of  the  value  of  the 
property  surrendered.  The  court  said  the  creditor  was  not  bound 
to  commence  proceedings,  but  having  done  so,  he  "  cannot  relin- 
quish any  hold  he  has  acquired  upon  the  property  of  the  debtor, 
without  resorting  to  the  proper  proceedings  to  make  therefrom 
the  debt.  And  this  rule  is  alike  applicable  if  the  property  has 
been  voluntarily  placed  in  the  hands  of  the  creditor,  or  he  has 
acquired  a  lien  thereon  by  proceedings  at  law."  '     It  has  been 

'  Moss  V.  Pettingill,  3  Minn.  217.  *City  of  Maquoketa  v.   Willey,  35 

'Moss  V.  Craft,  10  Mo.  720.  Iowa,  323,  per  Beck,   C.  J.;  Bank  of 

^Mayhewv.  Cricket,  2  Swanston,  185.      Missouri  v.  Matson,  24  Mo.  333;  Ash- 


FAILURE   TO   LETT   ON   PEOrERTY   OF   PRINCIPAL.  515 

held  that  the  liability  of  a  surety  is  not  affected  by  the  fact  that 
the  creditor  releases  an  attachment  on  property  of  the  principal, 
upon  the  groimd  that  the  creditor  is  not  bound  to  use  active  dili- 
gence to -obtain  payment  of  the  debt.^  This,  however,  ignores 
the  fact  that  as  soon  as  a  creditor  obtains  a  lien  on  the  property 
of  the  principal  for  the  payment  of  the  debt,  he  becomes  a  trus- 
tee; and  it  is  difficult  to  perceive  why  the  release  of  an  attach- 
ment lien  on  the  property  of  the  principal  should  not  liave  the 
same  effect  as  the  release  of  any  other  specific  lien  upon  property 
of  the  principal,  acquired  by  the  creditor  after  the  surety  becomes 
bound.  The  mere  dismissal  by  the  creditor  of  a  suit,  which  he 
has  commenced  against  the  principal,  and  by  which,  if  prose- 
cuted, the  money  could  have  been  collected,  will  not  discharge 
the  surety.  In  such  case,  no  lien  is  lost,  and  the  transaction 
amounts  to  simple  forbearance  without  consideration.'' 

§  382.  "When  surety  discharged  by  failure  of  creditor  to  cause 
execution  to  be  levied  on  property  of  principal. — If  the  creditor, 
having  an  execution  against  the  principal,  or  against  the  principal 
and  surety,  causes  it  to  be  returned  without  any  levy  being  made, 
he  does  not  thereby  discharge  the  surety,  even  though  the  prin- 
cipal had  property  subject  to  the  execution,  from  which  the  debt 
might  have  been  made  if  the  execution  had  been  levied,  and 
such  property  becomes  unavailable  for  the  payment  of  the  debt, 
provided  no  lien  has  attached  by  virtue  of  the  issuing  of  such 
execution,  and  none  is  lost  by  its  return.'  The  creditor  not  being 
bound  to  active  diligence  to  obtain  a  lien,  is  no  more  bound  to 
levy  an  execution  which  is  not  otherwise  a  lien,  than  he  would 
be  to  commence  suit  or  take  any  other  steps  to  obtain  a  lien.  It 
has,  however,  been  held,  where  execution  was  issued  against  a 
principal  which  became  a  lien  on  liis  property  sufficient  in  amount 

by's    Admx.  f .  Smith's  Exr.   9  Leigh  *  Hetherington  v.   Bank  at  Mobile, 

(Va.)  164.  14  Ala.  68;    Thornton  v.  Thornton,  63 

'Executors  of  Baker  i'.  Marshall,  16  Nor.   Car.   211;  Caruthers  r.  Dean,  11 

Vt.  522;  Montpelier  Bank  v.  Dixon,  4  Smedes  &  Mar.  (Miss.)  178;  Sawj^er  r. 

Vt.  587;    Barney  v.   Clark,   46   New  Bnxdford,  6  Ala.  572;  Hunter  i>.  Clark, 

Hamp.  514.     See,  also,  on  this  subject,  28  Texas,  159;  Summerhill  v.   Tapp, 

Bellows  V.  Lovell,  5  Pick.  8U7.  52  Ala.  227;    Woodbum  v.  Friend,  10 

"Somei-ville  v.   Marbury,    7   Gill  &  La.  (Curry,)  496;  Humphrey  v.  Hitt,  G 

Johns.  (Md.)  275.     For  a  peculiar  case  Gratt.  (Va.)  509;   McKenny's  Exrs.  v. 

on  this  subject,  see  McVeigh  v.  The  Waller,  1  Leigh  (Va.)  434;  Roystonw. 
Bank  of  the  Old  Dominion,  26  Gratt.    -  Howie,  15  Ala.  309;  Sawj^er's  Admr.  u. 

(Va.)  785.  Patterson,  11  Ala.  523. 


516  DISCHAKGE   OF   SURETY    BY   RELINQUISHING    SECURITY. 

to  satisfy  the  debt,  and  it  was  returned  not  levied  by  order  of  the 
creditor,  and  the  property  was  lost  as  a  security,  that  the  surety 
was  not  thereby  discharged  on  the  ground,  that  "  the  relinguish- 
nient  of  so  imperfect  a  lien  is  not  like  the  giving  up  of  funds 
actually  placed  by  the  principal  in  the  creditor's  hands  to  be  ap- 
])ropriated  to  the  payment  of  the  debt,  nor  like  goods  placed  in 
the  custody  of  the  law  for  that  purpose  by  the  actual  levy  of  a 
fieri  faciasP  ^  The  better  opinion,  and  the  one  sustained  by  the 
weight  of  authority,  however,  is  that  if  when  the  execution  is 
issued,  it  becomes  a  valid  lien  on  property  of  the  principal  with- 
out any  levy  being  made,  and  such  lien  is  lost  in  consequence  of 
the  return  of  the  execution  without  a  levy  by  procurement  of  the 
creditor,  and  the  surety  is  thereby  injured,  he  is  discharged  jpro 
tanto?  There  is  no  good  reason  for  a  distinction  in  this  regard 
between  valid  liens  of  various  kinds.  And  in  all  cases  of  this 
character,  the  distinction  should  be  clearly  borne  in  mind,  between 
the  case  of  a  creditor  holding  no  lien,  who  is  not  bound  to  active 
diligence,  and  the  case  of  a  creditor  who  does  hold  a  lien  on  prop- 
erty of  the  principal  for  payment  of  the  debt,  and  who  in  such 
case  is  a  trustee  for  all  concerned,  and  bound  to  use  the  same 
diligence  as  any  other  trustee  similarly  situated. 

§  383.  When  and  ho-w  far  surety  discharged  by  release  of  co- 
surety.— If  there  are  several  sureties  liable  for  the  same  debt,  and 
the  creditor  releases  one  of  them  from  liability,  but  does  not  thereby 
materially  alter  the  contract,  he  generally  releases  the  remaining 
sureties  to  the  extent  that  such  released  surety  would  otherwise  have 
been  liable  to  contribute  to  his  co-sureties.'     With  reference  to  tliis 

^Naylor   v.    Moody,    3    Blackford,  Schock  v.   Miller,    10    Pa.    St.    401; 

(Tnd.)  92,  per  Blackford,  J.     See,  also,  Klingeiisniith  v.  Klmgensinith's  Exr. 

on  this  subject,  Lenox  v.  Prout,     3  31  Pa.  St.  4G0.     Contra,  see  Starry  v. 

Wheaton,  520;   Morrison  v.  Hartman,  Johnson,  32   Ind.   43S.     See,  also,  on 

14  Pa.  St.  55.  this  subject,  Thompson  v.  Adams,  1 

''Dills  V.   Cecil,  4  Bush.  (Ky.)  579;  Freeman's  Ch.  R.  (Miss.)  225,  and  ex 

Ferguson  r.  Turner,  7  Mo.  497;  Robe-  j)arte  Giftbrd,   6  Vesey,  805.    To  the 

Kon  V.   Roberts,  20  Ind.  155;   Bland-  effect  that  the  discharge  of  one  surety 

ford's  Admr.  r.  Barger,  9  Dana  (Ky.)  entirely  releases  all  the  sureties,  see 

22;  Brownt'.Exrs.  of  Riggins,3Kelly,  Stockton    v.    Stockton,   40   Ind.  225; 

(Ga.)  405;    see,  also,  on  this  subject,  Toums  v.  Riddle,  2  Ala.  694.    To  the 

Miller  v.  Dyer,   1  Duvall,   (Ky.)  263;  effect  that  the  discharge  of  one  surety 

oven-uling  Finn  v.   Stratton,  5  .T.  J.  entirely  discharges    all    the  sureties 

Marsh  (Ky.)  364.  when  the  contract  is  thereby  varied, 

^  Jemison  v.  Governor,  47  Ala.  390;  •    see  Mitchell  v.  Burton,  2  Head  (Tenn.) 

State  V.  Matson,   Admr.  44  Mo.  305;  613. 


EELEASE    OF    CO-SUEETT.  517 

it  has  been  said  that:     "  The  same  principles  of  equity  exist  be- 
tween co-sureties  to  be  relieved  to  the  extent  of  the  share  of  each 
in  the  debt  bj  acts  of  the  creditor,  as  exist  between  them  and  the 
principal,  to  be  relieved  of  the  whole  debt  by  similar  acts  of  the 
creditor  with  the  principal;  and  where  a  creditor  by  his  acts  dis- 
charges one  surety  or  actively  relinquishes  a  lien,  he  can  only 
hold  the  other  surety  liable  for  his  jpro  rata  share  of  the  debt."  ^ 
A  principal  being  indebted  to  a  creditor  in  8,000?.,  gave  him  cer- 
tain securities,  and  also  as  additional  security,  four  notes,  each  for 
2,000?.,  and  each  indorsed  by  a  separate  surety.     Time  was  given 
to  three  of  the  sureties,  and  it  w^as  held,  that  the  remaining  surety 
was  released  from  three-fourths  of  the  note  for  which  he  had  become 
bound.^     Judgment  was  recovered  against  B,  one  of  five  sureties 
on  a  note,  and  an  execution  was  levied  on  property  of  B  sufficient 
to  pay  the  debt,  but  the  creditor  ordered  the  execution  to  be  re- 
turned unsatisfied.     Subsequently  the  creditor  commenced  suit 
against  C,  another  of  the  sureties.     Held,  that  if  all  the  sureties 
were  solvent,  the  creditor  could  recover  from  C  only  four-fifths  of 
the  debt,  but  if  all  the  other  sureties  were  insolvent,  he  could 
only  recover  one  half  thereof.'     B  and  0  were  jointly  bound  as 
sureties  for  A,  and  D,  the  wife  of  A,  charged  her  separate  estate 
to  indemnif}^  B  from  all  loss,  etc.     The  whole  loss  was  paid  by  B 
alone,  who  afterwards,  without  the  concurrence  of  D,  released  his 
co-surety  C.     Held,  that  D's  separate  estate  was  thereby  released 
from  one-half  the  loss  sufi'ered  by  B."     Where  the  sureties  in  a 
bond  were  only  bound  severally  and  for  different  amounts,  it  was 
held,  that  the  release  of  one  of  them  by  striking  his  name  from 
the  bond,  did  not  affect  the  liability  of  the  others  at  law.^     It  has 
been  held  that  if  a  county  court,  under  the  provisions  of  a  stat- 
ute, releases  one  of  several  sureties  in  a  guardian's  bond,  it  does 
not  afi'ect  the  liability  of  the  other  sureties  who  became  bound, 
knowing  the  law,  and  must  be  presumed  to  have  contemplated 
such  an  event.*     It  has  also  been  held  that  the  act  of  the  creditor 
in  releasing  an  attachment  levied  on  the  property  of  one  surety 
does  not  discharge  another  surety.^     If  the  creditor  releases  one 

'  Rice  V.  Morton,  19  Mo.  263.  *  Collins  v.  Prosser,  1  Barn.  &  Cress. 

2  Stirling  v.  Forrester,  3  Bligh,  575.  682;  U.  3  Dow.  &  Ryl.  112. 

2  Dodd  y.  Winn,  27  Mo.  501.  ^ Frederick  v.   Moore,    13  B.  Men. 

*  Hodgson    V.    Hodgson     2    Keen,  (Ky.)  470. 

704.                                                         .  '  Chapman  v.  Todd,  60  Me.  282. 


518  DISCHARGE    OF   SUKETT    BY    EELI^'QUISHI^'G    SECURITY. 

surety,  but  expressly  provides  that  sucli  release  shall  not  affect 
the  liaklity  of  the  otlier  sureties,  it  has  been  held  that  such  other 
sureties  remain  bound  the  same  as  if  no  release  had  been  given.' 

1  Thompson  i;.  Lack,  3  Man.  Gr.  &      v.  Adams,  1  Patton,  Jr.  &  Heath  (Va.) 
Scott,  540.    See,  also,  Hewitt's  Admr.      34. 


CHAPTER  XYIII. 


OF  THE  DISCHAKGE  OF  THE  SURETY  OE,  GUAEANTOR  BY  THE 

CREDITOR  NEGLIGENTLY  LOSING  SECURITY  FOR 

THE  DEBT. 


Section. 

Surety  discharged  if  creditor  neg- 
ligently lose  security  for  the 
debt.     Loss  of  collaterals        .     384 

Instances  of  discharge  of  surety 
by  creditor  negligently  losing 
benefit  of  collateral  security     .    385 

Surety  discharged  if  creditor  neg- 
ligently lose  security  for  the 
debt.     Instances        .        .        .  386 

Instances  of  discharge  of  surety     . 
by  neglect   of  creditor  to  pre- 
serve or  perfect  securities        .     387 

When  surety  discharged  by  neg- 


Scction. 
ligence  of  creditor  in  prosecut- 
ing suit  or  judgment    against 
principal         ....       388 

"When  surety  discharged  by  neg- 
lect of  creditor  to  record  moii- 
gage  for  security  of  debt  .        .  339 

Cases  holding  surety  not  dis- 
charged by  negligence  of  cred- 
itor       ....         390,391 

Surety  not  discharged  by  failure 
of  creditor  to  present  claim 
against  estite  of  deceased  prin- 
cipal.    Other  cases        .        .       392 


§  384.  Surety  discharged  if  creditor  negligently  lose  security 
for  the  debt — Loss  of  collaterals. — The  creditor  wlio  lias  efiects 
of  the  principal  in  his  hands,  or  under  his  control,  for  the  secur- 
ity of  the  debt,  is  a  trustee  for  all  parties  concerned,  and  if  such 
effects  are  lost  through  the  negligence  or  want  of  ordinary  dili- 
gence of  the  creditor,  the  surety  is  discharged  to  the  extent  that 
he  is  injured,  the  same  as  if  the  effects  had  heen  lost  by  the  pos- 
itive act  of  the  creditor.  In  such  case,  he  is  bound  to  be  diligent 
in  preserving  such  effects,  to  the  same  extent  that  any  other 
trustee  similarly  situated  is  bound  to  use  diligence.  The  kind  of 
diligence  required  will  be  governed  by  the  circumstances  of  each 
particular  case.  If  the  principal  places  in  the  hands  of  the  cred- 
itor, as  collateral  security  for  the  debt,  an  obligation  of  a  third 
person,  the  creditor  is,  without  any  special  agreement  to  that 
effect,  bound  to  use  due  dilligence  to  collect  the  same,  and  to 
charge  all  the  parties  thereto,  and  if  anything  is  lost  on  account 
of  his  failure  to  use  such  diligence,  not  only  the  surety,  but 
the  principal,  also   is  discharged  to  the  extent  that  he  is  in- 

(519) 


520      DISCHARGE  OF  SUKETY  BY  NEGLIGENTLY  LOSING  SECURITY. 

jured.^  AVitli  reference  to  this,  it  lias  been  said  that:  "  The  assignor 
of  collaterals  parts  with  his  control  over  them,  and  the  assignee 
should  be  bound  to  use  proper  exertions  to  render  them  effectual 
for  the  purpose  for  which  thej  were  assigned.  The  principle  is, 
that  when  a  right  of  action  or  a  judgment  is  transferred  by  a 
debtor  to  his  creditor,  to  secure  the  debt,  or  as  collateral  security, 
ordinary  diligence  must  be  used  to  make  it  available,  and  if  a 
loss  occurs  by  negligence,  even  passive  negligence,  which  is  un- 
reasonable, and  results  in  loss,  it  will  be  a  good  defense  to  a  suit 
on  the  original  debt."  *  It  has  also  been  said  that  "The  neces- 
sary care  and  attention  should  be  bestowed  to  preserve  the  value 
of  whatever  is  thus  voluntarily,  and  with  a  view  to  one's  own 
interest,  taken  under  his  control."  ^  It  has  been  held  that  the 
question  "  What  is  due  diligence,"  is  when  the  facts  are  ascer- 
tained one  of  law;  and  where  a  note  was  due  when  the  creditor 
took  it  as  collateral,  and  the  maker  was  then  solvent,  but  the 
creditor  did  not  bring  suit  on  it  for  three  months,  when  the 
maker  had  become  insolvent,  it  was  held  that  this  was  such  neg- 
ligence as  charo-ed  the  creditor  with  the  loss  of  the  note.^ 

§  385.  Instances  of  discharge  of  surety  by  creditor  negligently 
losing  benefit  of  collateral  security. — A  creditor  who  was  bound 
to  use  diligence  to  charge  a  guarantor,  commenced  a  suit  and 
levied  an  attachment  on  property  of  the  principal,  but  failed  to 
collect  the  debt  because  the  attachment  was  improperly  served, 
and  it  was  held  that  the  guarantor  was  thereby  discharged.^  The 
assignee  of  a  note  as  collateral  securitj^  was  notified  of  the  im- 
pending insolvency  of  the  maker,  and  warned  that  if  he  did  not 
sue  or  surrender  the  note  forthwith,  he  must  take  the  risk,  and 
would  be  held  responsible.     The  debt  being  lost  in  consequence 

'  Kemmerer  v.  Wilson,   31   Pa.    St.  charged  if  collaterals  in  his  hands  de- 

110;  Pickens  v.  Yearborough's  Admr.  predate  because  he  does  not  realize  on 

26  Ala.  417;    Noland  v.  Clark,  10  B.  them  as  soon  as  he  might,  see  Brick 

Mon.  (Ky.)  239;  Jennison  v.  Parker,  7  ads.  The  Freehold  National  Banking 

Mich.  355;  Sellers  v.  Jones,  22  Pa.  St.  Co.  8  Vroom  (  N.  J.)  307. 

423;  Hill  V.  Bourcier,  29  La.  An.  841;  ^  Word  v.  Morgan,  5  Sneed  (Tenn.) 

Lamberton  v.  Windom,  18  Minn.  508;  79,  per  Caruthers,  J. 

Douglass  V.  Reynolds,  7  Peters,  113;  ^Xrotter  t;.  Crockett,  2  Porter  (Ala.) 

Slevin  v.  Morrow,  4  Ind.  (2  Porter)  425 ;  401. 

Lee  f.  Baldwin,  10  Ga.  208;  Shippen's  ^  Wakeman  r.  Gov/dy,  10  Bosw.  (N. 

Admr.  v.  Clapp,  36  Pa.  St.  89;  Wake-  Y.)  208. 

"   man  v.  Gowdy,  10  Bosw.  (N.  Y.)  208.  =  Beach  v.  Bates,  12  Vt.  08. 
To  the  effect  that  the  surety  is  not  dis- 


ISfEGLIGEKT   LOSS    OF   SECUEITIES.       INSTANCES.  521 

of  a  failure  to  sue  when  notified  as  above,  the  assignee  was  held 
responsible  for  the  amount  of  the  note.^  L,  who  owned  S  $1,000, 
for  which  S  held  L's  note  and  a  mortgage  on  a  printing  press,  sold 
the  j^ress  to  C  for  $5,000,  and  C  agreed  to  satisfy  the  note  and 
mortgage.  S  refused  to  release  L,  and  take  0  for  the  debt,  but 
there  was  evidence  that  he  agreed  to  take  C's  liability  as  collate- 
ral security  for  the  debt.  Afterwards  S  gave  C  time,  and  the 
mortgaged  property  was  destroyed  by  fire:  Held,  that  L  was  dis- 
charged to  the  extent  that  he  was  injured  thereby.^  A  bank  is 
bound  to  take  ordinary  care  only  of  bonds  pledged  to  it  as  collat- 
eral security  for  the  payment  of  a  note  deposited  with  it,  and  if 
using  such  care,  the  bonds  are  stolen  by  burglars,  the  bank  is  not 
liable  for  their  loss,'  "Where  the  creditor  at  the  time  he  received 
a  collateral  security,  agreed  to  keep  it  and  return  it  to  the  wife 
of  the  principal  when  he  paid  the  debt,  it  was  held  that  this  was 
a  complete  answer  to  a  defense  set  up  by  the  surety  to  the  effect 
that  the  creditor  had  not  realized  on  the  collaterals  as  soon  as  he 
might,  and  that  they  had  depreciated  in  value.'' 

§  386.  Surety  discharged,  if  creditor  negligently  lose  se- 
curity for  the  debt — Instances. — If  the  creditor  has  a  lien  on 
the  property  of  the  j)rincipal  for  the  payment  of  the  debt,  and 
negligently  suffers  the  property  to  be  diverted  from  that  purpose, 
or  lost  as  a  security,  the  surety  is  discharged  to  the  extent  of  the 
security  lost,  and  this  though  the  lien  was  obtained  after  the 
surety  became  bound,  and  without  his  knowledge.  Thus,  after 
principal  and  surety  had  signed  a  note,  and  without  a  previous 
agreement  to  that  effect,  the  principal  gave  the  creditor  a  mort- 
gage on  personal  property,  to  secure  the  same.  The  creditor  al- 
lowed the  principal  to  sell  and  M-aste  the  property,  and  it  was 
held  that  the  surety  was  thereby  discharged.  The  court  said  the 
creditor  was  under  no  obligation  to  seek  for  or  take  the  mortgage, 
"  but  if  he  chose  to  do  so,  it  must  be  regarded  as  a  bailment  for 
the  interest  of  all  parties,  and  imposing  upon  the  creditor  the 
obligation  of  ordinary  care  and  diligence  in  respect  to  them." 
The  creditor,  taking  a  pledge,  is  bound  to  the  principal  to  use  or- 
dinary diligence  in  taking  care  of  the  pledge,  and  must  account 
to  the  pledgor  for  any  loss  happening  for  want  of  such  diligence. 

'  Bonta  r.  Curry,  3  Bush  (Ky.)  678.  ^  Jenkins  v.  National  V.  B.  of  Bow- 

^  Lochrane  v.  Solomon,  38  Ga.  286.       doinham,  58  Me.  275. 

*  Brick  V.  Freehold  National  Banking  Co.  8  Vroom  (N.  J.)  307. 


522     DISCIIAEGE  OF  SURETY  BY  NEGLIGENTLY  LOSING  SECUKITY. 

Much  more  must  lie  account  to  a  surety.  "  Indeed,  it  would  be 
absurd  to  bold  that  the  surety  would  not  be  discharged  by  the 
negligence,  which  would  discharge  the  principal,  and  it  would 
be  equally  absurd  to  contend  that  the  duty  of  the  creditor  to  use 
ordinary  care  was  lessened  by  the  fact  tliat  there  was  a  surety. 
*  If  the  creditor  chooses  to  accept  such  securities,  the  law 
M'ill  imply  that  he  undertakes  to  hold  them  in  trust  for  the  parties 
interested,  and  to  use  ordinary  diligence  in  the  care  of  them,  and 
upon  payment  of  the  debt  by  the  surety,  he  is  bound  to  transmit 
them  unimpaired  to  him.  If  he  relinquish  such  securities  to  the 
j)rincipal,  it  is  well  settled  that  he  thereby  exonerates  the  surety 
at  least  to  the  extent  of  their  value.  *  Between  this  class  of 
cases,  namely,  the  release  of  securities  by  the  direct  act  of  the 
creditor,  and  allowing  them  by  want  of  ordinary  care  to  be  lost 
or  destroyed,  we  are  unable  to  perceive  any  solid  distinction.  In 
both  cases  the  surety  may  have  been  lulled  into  security,  and 
prevented  from  taking  the  counter  security,  that  he  might  other- 
wise have  required,  relying,  as  he  had  a  right  to  do,  u])on  the 
creditor's  holding  such  securities  fairly  and  impartially."  ^  A 
made  a  note  for  $5,000,  payable  to  B,  who  indorsed  it  to  C.  A 
lodged  with  0  the  note  of  a  third  person  for  $10,000,  secured  by 
mortgage  on  real  estate  as  collateral  security  for  the  note  of 
$5,000.  The  same  mortgage  secured  another  note  for  $10,000. 
The  mortgaged  property  was  sold  at  the  instance  of  the  holder 
of  the  last  mentioned  note,  and  brought  $20,000,  which  was  paid 
to  the  sheriff,  who  released  the  whole  mortgage.  C,  by  proceed- 
ing against  the  sheriff  for  the  amount  of  the  $5,000  note,  ratified 
the  release  of  the  mortgage,  and  having  failed  to  obtain  payment 
from  the  sheriff,  sued  B  on  his  indorsement.  Held,  that 
C,  by  allowing  the  mortgage  security  to  be  lost,  had 
destroyed  B's  right  of  subrogation  thereto,  and  discharged 
him.'^  Principal  and  surety  signed  a  bond  and  the  prin- 
cipal and  his  wife,  in  order  to  secure  the  bond,  mortgaged 
to  the  creditor  their  equitable  life  interest  in  certain  real 
estate,  the  legal  title  to  which  was  in  trustees.  The  creditor 
assigned  the  bond,  and  neither  he  nor  his  assignee  gave  notice  of 

'City   Bank    v.   Young,     43    New  =  Merchants  Bank  v.  Cordevoille,  4 

Hamp.  457,  per  Bellows,  J.    To  con-  Robinson  (La.)  506.     See,  also.  Bank 

trary  effect,   see  Freaner  v.  Tingling,  of  Gettysburg  v.  Thompson,  3  Grant's 

■  37Md.  491.  Cases  (Pa.)  114. 


NEGLECT   OF    CEEDITOE   TO    PERFECT   SECUKITIES.  523 

the  mortijao-G  to  tlie  trustees  lioldino-  the  lesfal  title  to  the  life  in- 
terest,  who  sold  the  same  and  divided  the  proceeds  aiiioiig  the 
parties  interested,  and  the  life  interest  was  lost  as  a  security. 
Held,  the  surety  was  discharged  by  the  neglect  of  the  creditor 
to  give  notice  of  the  mortgage.  The  court  said:  "  It  is  perfectly 
established  in  this  court  that  if,  through  any  neglect  on  the  part 
of  the  creditor,  a  securit}^,  to  the  benefit  of  which  a  surety  is  en- 
titled, is  lost  or  not  properly  perfected,  the  surety  is  discharged." ' 
Execution  against  principal  and  surety  was  levied  on  jjroperty  of 
the  principal,  which  was  in  the  hands  of  the  surety  for  his  in- 
demnity, and  sufficient  to  pay  the  debt.  The  officer  exposed  the 
property  for  sale,  but  found  no  bidders,  and  without  direction 
from  the  creditor,  left  the  property  in  the  hands  of  the  pi'incipal, 
and  it  was  lost.  Held,  that  after  the  property  had  been  levied  on, 
it  wa,s  the  duty  of  the  creditor  or  of  the  officer,  to  see  that  it 
was  taken  care  of  and  the  surety  was  discharged.^  Plaintiffs  lent 
to  P  300?.,  for  which  A  became  surety.  At  the  same  time  P,  by 
deed,  dated  August  25th,  1870,  assigned  certain  fixtures,  etc.,  as 
security  for  the  debt.  The  assignment  provided  for  the  repay- 
ment of  the  loan  xVugust  25th,  1871,  and  for  the  payment  of  in- 
terest February  25tb,  1871,  and  P  was  to  remain  in  possession 
till  default.  The  assignment  was  not  recorded,  P  did  not  pay  the 
interest  due  February  25th,  and  the  plaintiffs  did  not  take  posses- 
sion. P  became  bankrupt,  and  the  trustee  in  bankruptcy  seized 
and  sold  the  assigned  goods,  and  they  were  lost  as  security.  Held, 
A  was  discharged  jpro  tanto  both  by  the  negligence  of  the  plain- 
tiffs to  record  the  deed,  and  their  failure  to  take  possession  upon 
the  default  in  the  payment  of  interest,  they  knowing  that  P  was 
in  embarrassed  circumstances.  The  principle  is  fully  held  that 
the  negligence  of  the  creditor,  in  permitting  securities  to  be  lost 
which  he  should  hand  over  to  the  surety  upon  payment  of  the 
debt,  discharges  the  surety.' 

§  387.  Instances  of  discharge  of  surety  by  neglect  of  credi- 
tor to  preserve  or  perfect  securities. — If,  through  any  neglect  of 
the  creditor,  a  security  to  the  benefit  of  which  the  surety  is  en- 
titled is  lost  or  not  properlj^  perfected,  the  surety  is  discharged  to 
the  extent  that  he  is  injured  thereby.     Thus,  judgment  having 

1  Strange  t'.  Fooks,  4  Giffard,  408,  ^  ^y^iff  ^_  j.y_  Law  Rep.  7  Queen's 

per  Sir  John  Stuart,  V.  C.  B.  756. 

*  Sherraden  v.  Parker,  24  Iowa,  23. 


524    DISCHAKGE    OF   SUKETY   BY  NEGLIGENTLY  LOSING  SECUKITY. 

been  obtained  against  A,  lie  appealed  to  tlie  Supreme  Court, 
givino;  B  as  the  surety  on  the  appeal  bond.  Pending  the 
appeal,  A  died,  and  the  creditor  failed  to  make  his  widow  a 
party  to  the  appeal,  and  consequently  recourse  against  one- 
half  of  A's  estate,  which  was  solvent,  was  lost.  The  judg- 
ment of  the  court  below  was  a  lien  on  A's  estate  when 
the  appeal  was  taken,  but  such  lien  on  one-half  of  the  estate 
was  lost  by  the  failure  of  the  creditor  to  make  the  widow 
a  party  to  the  appeal.  Held,  B  was  discharged  to  the  extent 
that  he  was  injured.  The  court  said:  "It  would  seem  to 
be  a  necessary  consequence  of  the  principles  of  the  law  of  surety- 
ship that  the  surety  is  entitled  to  the  benefit  of  all  the  securities 
in  the  hands  of  the  creditor;  and  if  any  of  them  are  lost  by  his 
M-illful  neglect  or  want  of  due  diligence,  the  surety  is  to  that  ex- 
tent discharged.  *  By  Article  3030  of  the  Code,  the  surety  is 
discharged  when  by  the  act  of  the  creditor  the  subrogation  to  his 
rights,  mortgages  and  privilege  can  no  longer  be  operated  in  favor 
of  the  surety.  Article  2037  of  the  Napoleon  Code,  is  to  the  same 
eifect;  and  the  Court  of  Cessation  has  more  than  once  decided 
that  the  term  act  of  the  creditor  applied  to  omissions  or  neglects 
of  the  creditor,  and  consisted  in  omittendo,  as  well  as  in  com- 
mittendoy  ^  A  principal  died,  and  auditors  were  appointed  to 
marshal  the  money  arising  from  a  sale  of  his  real  estate.  Judg- 
ment had  been  obtained  against  him  and  a  surety  by  a  bank,  and 
the  money  aforesaid  was  "  subject  and  liable  to  the  judgment  of 
the  bank,  and  would  have  been  obtained  if  due  diligence  had 
been  used.  *  Here,  to  be  sure,  the  bank  had  not  the  balance 
actually  in  their  hands,  nor  did  they  actually  assent  to  its  j)ass- 
ing  into  the  hands  of  *  (the  principal)  but  they  might,  by  using 
due  diligence  and  doing  their  duty  to  the  surety,  have  obtained 
it,  and  thus  have  had  satisfaction  pro  tanto  on  their  judgment 
from  the  proceeds  of  the  real  estate  of  the  real  debtor,  and  it 
was  their  duty  to  have  done  this.  *  The  principal  could  not 
take  it  out  of  court,  but  the  bank  could  have  done  so,  and  if  they 
did  not  they  must  lose  it,  for,  having  had  the  means  of  payment 
in  their  power,  they  could  not  pass  them  by  and  recover  from  a 
sui-ety."  ^  A  being  the  maker  of  a  note  held  by  0,  upon  which 
B  was  surety,  died,  and  his  administrator  having  suggested  the 

•    '  Saulet  V.  Trepagnier,  2  La.  An.  427,  ^  Ramsey  v.  Westmoreland  Bank,  2 

per  Eustis,  C.  J.  Pen.  &  Watts  ;Pa.)  203,  per  Smith,  J. 


KEGLECT    OF    CREDITOR   TO    PRESERVE   SECURITIES,  525 

insolvency  of  liis  estate,  filed  a  bill  in  the  chancery  court  to  re- 
move the  administration  thither,  and  to  have  a  snfRciency  of  A's 
lands  sold  to  pay  his  debts.  An  order  was  made  and  published, 
requiring  creditors  to  file  their  claims,  and  thereupon  C  filed  the 
note  with  the  clerk  and  master.  A  portion  of  the  land  was  sold 
under  a  decree,  and  a  fund  sufiicient  to  pay  all  the  debts  was  col- 
lected before  the  civil  war  in  the  United  States.  C  did  not  demand 
payment  of  the  clerk,  and  nothing  was  paid  on  the  note,  and  after 
the  war  he  sued  the  surety.  It  did  not  appear  what  had  become 
of  the  money  in  the  clerk's  hands.  Held,  the  surety  was  dis- 
charged. The  court  said  that  by  filing  his  claim  in  the  chancery 
proceeding,  C  signified  his  intention  to  obtain  payment  from  the 
real  estate,  and  could  not  afterwards  remain  passive.  Having 
filed  his  claim  it  was  his  duty  to  apply  for  payment.  The  i)ay- 
ment  of  the  money  into  court  was  under  the  circumstances,  a  dis- 
charge of  the  surety.  The  surety  is  entitled  to  the  benefit  of  all 
securities  held  by  the  creditor,  "  and  if  the  creditor  who  has  or 
ought  to  have  had  them  in  his  full  possession  or  power,  loses  them 
or  permits  them  to  get  into  the  possession  of  the  debtor,  tlie 
surety  will,  to  the  extent  of  such  security,  be  dischai-ged."  *  By 
articles  of  agreement,  H  contracted  with  "W  to  complete  certain 
fittings  for  a  warehouse  for  3,450?.  to  be  paid  by  instalments  dur- 
ing the  progress  of  the  work.  The  contract  contained  a  stipula- 
tion, "  that  W  shall  and  may  insure  the  fittings  from  risk  hy  fire 
at  such  time  and  for  such  amount  as  the  architects  may  consider 
necessary,  and  deduct  the  costs  of  such  insurance  for  the  time 
during  which  the  works  are  unfinished,  from  the  amount  of  the 
contract."  A  became  surety  for  the  due  performance  of  the  work 
by  H.  Fittings  worth  2,300?.  were  destroyed  without  insurance, 
and  H  became  insolvent  and  failed  to  complete  the  contract.  Held, 
that  A  was  discharged  by  the  failure  of  W  to  insure  the  fittings.^ 
This  judgment  was,  upon  appeal,  aflirmed  by  the  Exchequer  Cham- 
ber, and  the  court  there  held,  that  as  the  surety  had  agreed  to  be- 
come responsible  for  an  insured  principal  and  not  an  uninsured 
one,  he  was  not  discharged  simply  to  the  extent  that  he  was  in- 
jured, as  in  the  case  where  a  security  is  lost,  but  the  contract  is 
not  changed,  but  he  was  wholly  dischai-ged,  as  in  the  case  where 

'  Gillespie    v.    Darwin,      6    Heisk.  ^  Watts  v.   Shuttleworth,  5  Hurl.  & 

(Tenn.)  21,  per  Nelson,  J.  Nor.   235. 


520      DISCHAEGE  OF  SUEETT  BY  NEGLIGENTLY  LOSING  SECUEITY. 

time   is   given,   or   any   material   alteration   in  the  contract  is 
made.^ 

§  388.  'When  surety  discharged  by  negligence  of  creditor  in 
prosecuting  suit  or  judgment  against  principal. — A  verdict  was 
recovered  against  a  principal  and  two  sureties  in  1868,  but  no 
judgment  was  entered  thereon.  In  1874  the  plaintiff  moved  to 
enter  judgment  thereon  nunc  ])ro  tunc.  In  1868  the  principal 
was  solvent,  and  if  judgment  had  been  then  entered,  it  could 
liave  been  collected  of  him,  but  he  had  since  become  insolvent: 
Held,  this  was  an  act  of  the  creditor  which  injured  the  surety, 
and  exposed  him  to  greater  risk,  and  discharged  him  nnder  the 
Code  which  provided  that  any  act  of  the  creditor  which  injured 
the  surety  or  increased  his  risk,  or  exposed  him  to  greater  liabil- 
ity, should  discharge  him.  The  negligence  of  the  creditor  was 
considered  his  act.^  Where,  in  a  suit  on  a  contract  made  with 
the  commissioners  of  a  district  of  a  parish,  acting  under  an  ordi- 
nance of  the  police  jury  for  the  erection  of  certain  levees,  the  evi- 
dence showed  that  the  contractor  did  not  contemplate  that  the 
parish  should  be  responsible  in  the  first  instance  for  the  cost  of 
the  levees;  and  the  failure  to  obtain  payment  from  the  source 
originally  contemplated,  was  attributable  to  the  creditor,  who  at- 
tempted to  collect  the  money  from  the  parties  primarily  liable, 
and  could  certainly  have  done  so,  but  did  not  pursue  the  proper 
course:  It  was  held  that  the  parish  was  discharged  from  liability 
by  such  negligence  of  the  creditor.'  A  as  principal,  and  B  as  sure- 
ty, were  bound  to  C  for  1,000^.  A,  desiring  a  further  advance  of 
800Z.,  and  getting  it  from  C,  gave  C  a  warrant  of  attorney  to  con- 
fess judgment  for  2,600Z.,  to  secure  both  sums,  and  it  was  at  the 
same  time  agreed  between  B  and  C  that  when  C  was  requested 
by  B,  he  should  enter  up  judgment  on  the  Vi^arrant  of  attorney, 
and  levy  execution  on  A's  property.  B  notified  C  to  enter  up 
judgment,  which  he  did,  and  levied  on  A's  property,  but  neg- 
lected to  file  the  warrant  of  attorney  or  affidavit  of  "the  execution, 
and  by  such  neglect  the  property  levied  on  was  lost  as  a  security. 
It  was  held  that  B  was  thereby  discharged.  The  court  said:  "I 
think  that  *  (C)  having  entered  into  a  stipulation  with  the 
surety  that  he  should  have  the  benefit  of  this  security,  Avere  bound 

'Watts  V.  Shuttleworth,  7  Hurl.  &  =*  glittery  w.  Police  Jury,  2  La.  An. 

-Nor.  353.  444.     See,  also,  on  this  subject,  Clop- 

» Hayes  V.  Little,  52  Ga.  555.  ton  v.  Spratt,  52  Miss.  251. 


NEGLECT  OF  CREDITOR  TO  RECORD  MORTGAGE.       527 

to  do  what  was  necessary  to  keep  it  effectual.  It  is  by  their  omis- 
sion that  the  benefit  of  tlie  security  has  been  lost,  and  I  must, 
therefore,  hold  that  the  surety  is  discharged."^  • 

§  389.  When  surety  discharged  by  neglect  of  creditor  to  re- 
cord mortgage  for  security  of  the  debt.  —  If  the  creditor  has  a 
mortgage  or  other  conveyance  of  property  of  the  principal  as  a 
security  for  the  debt,  and  neglects  to  record  the  same,  and  the 
property  is  consequently  lost  as  security,  this  is  such  negligence 
on  his  part  as  will  discharge  the  surety  to  the  extent  that  he  is 
injured  thereby.  Thus,  where  a  principal  gave  the  creditor  a 
chattel  mortgage  on  property  sufficient  to  pay  the  debt,  which  the 
creditor  failed  to  record,  and  in  consequence  the  property  was 
lost  as  security,  it  was  held  the  surety  was  thereby  discharged. 
The  court  said:  "  Had  the  principal  debtor  pledged  to  the  credi- 
tor his  gold  watclt,  and  the  creditor  afterwards  allowed  the  debtor 
the  use  of  it,  and  the  latter  had  sold  it  to  an  innocent  third 
party,  there  can  be  no  question  but  that  a  surety  could  avail  him- 
self of  such  wi'ongful  treatment  of  the  pledge  by  the  creditor.  * 
Wherein  does  the  case  before  us  differ  from  the  illustration  just 
made?  In  the  latter  case  the  wrong  consists  in  doing  something 
— passing  the  pledge  back  to  the  debtor;  in  the  former  the  wrong 
arises  from  the  plaintiff's  omission  to  do  something — the  simple 
act  of  filing  and  having  the  mortgage  recorded.  And  it  is  just 
behind  this  distinction,  between  doing  something  and  omitting  to 
do  something,  that  the  plaintiff  seeks  to  shield  himself.  It  is 
true,  the  books  speak  of  the  creditor  being  under  no  obligation 
to  exercise  active  diligence  for  the  protection  of  the  surety  as 

'  Watson  V.  Alcock,  1  Smale  &  Gif-  creditor  in  not  perfecting,  or  in  losing 

fard,  319,  per  Sir  John  Stuart,  V.  C.  securities,  see  Ex  parte  Mure,  2  Cox, 

Affirmed  on  appeal,  Watson  v.    Al-  63;  Goodloe  v.  Clay,  6  B.  Mon.  (Ky.) 

cock,  4  De  Gex.  Macn.   &  Gor.  242.  236;  Succession  of  Pratt,  16  La.  An. 

Holding  that    a  judgment    creditor  357;  Steele  v.  Mealing,  24  Ala.  285; 

who  omits  to  have  his  judgment  on  a  Hill  v.   Sewell,   27  Ark.  15;  Miller  v. 

forthcoming  bond  enrolled,  and  there-  Berkey,   27  Pa.  St.  317;  Chichester  r. 

by  lets  in  junior  judgment  creditors,  Mason,  7  Leigh  (Va.)   244.     Holding 

who  sweep  away  all  the  'principal's  that  a  lessening  in  the  value  of  secu- 

property,  does  not  thereby  discharge  rities  by  the  mere  passive  delay  of 

the  surety;  see  Pickens  v.  Finney,  12  creditor  to  enforce  them  where  none 

Smedes  &  Mar.  (Miss.)  468;  McGee  v.  of  the  securities  are  lost,  does  not  dis- 

Metcalf,   12    Smedes  &  Mar.    (Miss.)  charge    the    surety,  see    Clopton     v. 

535.     For  other  cases  holding  the  sur-  Spratt,  52  Miss.  251. 
ety  discharged  by  negligence  of  the 


528      DISCHARGE  OF  SURETY  BY  NEGLIGENTLY  LOSING  SECURITY. 

lono-  as  die  surety  himself  remains  inactive,  and  that  to  dis- 
charge the  surety  the  creditor  must  be  guilty  of  some  wrongful 
act,  as  hy  a  release  or  fraudulent  surrender  of  the  pledge."  The 
cases  holding  this  doctrine  are  mostly  cases  which  decide  that 
the  creditor  is  not  bound  to  enforce  and  realize  upon  securities 
held  by  him  before  proceeding  against  the  surety.  "  But  it  is 
one  thing  to  convert  the  securities  given  by  the  debtor  into 
money,  that  they  may  be  applied  to  satisfy  the  debt  of  the  prin- 
cipal debtor,  and  quite  another  to  preserve  such  securities 
that  they  may  be  made  so  available.  While  the  creditor  ma}'- 
be  relieved  from  the  former,  he  should  be  held  responsible 
for  the  loss  of  any  security  arising  from  his  wrongful  acts, 
either  of  omission  or  commission  *  Can  he  who  has  taken  the 
security  stop  short  and  omit  to  do  that  which  renders  it  chiefly 
valuable,  under  the  excuse  that  others  did  not  firge  him  to  file  it 
or  furnish  the  pittance  necessary  to  pay  the  recorder."  ^  In  a 
similar  case,  where  the  same  thing  was  held,  the  court  said:  "An 
act  of  omission  on  the  part  of  the  creditor,  when  the  law  requires 
him  to  act,  may  be  quite  as  potent  for  mischief  to  the  securitj' 
as  an  act  of  commission."  ^  In  the  case  of  a  mortgage  of  real 
estate,  where  the  creditor  had  failed  to  record  it,  and  the  surety 
was  held  to  be  thereby  discharged,  the  court  said:  "•  Nor  can  it  be 
gainsaid  that  where  the  creditor  who  has  the  securities,  suffers 
them  by  his  laches  to  become  valueless,  he  is  in  no  better  condi- 
tion than  if  he  had  released  that  security."  ^  In  a  leading  case  on 
this  subject,  A  became  surety  for  B  in  a  bond  conditioned  for 
the  payment  of  an  annuity  to  C.  Yarious  securities  for  the 
annuity  were  put  up  by  B,  and  among  them  he  assigned  two 
ships  to  C.  The  assignment  was  not  recorded,  as  required  by  the 
ship  registry  acts,  and  B  afterwards  sold  the  ships  and  became  in- 
solvent, and  the  ships  were  lost  as  a  security.  Held,  that  C,  by 
his  neglect  to  record  the  assignment,  discharo-ed  A  to  the  extent 
of  the  value  of  the  two  shij)s.*  But  where  a  rule  of  court  pro- 
vided that  a  recognizance  for  the  payment  of  the  rent  of  prop- 

^Burr  V.   Boyer,  2  Nebraska,  265,  ^Xeaff  v.  Rosa,  1  Ohio  St.  469,  per 

per  Cronuse,   J.    To    similar    effect,  Thurman,  J.     Contra,   Lang  v.  Bre- 

see  Wulff  V.  Jay,  Law  Rep.  7  Queen's  vard,    3    Strob.    Eq.    (So.   Car.)    59; 

B.  756;  see,  also,  Straton  v.   Rastall,  Hampton  v.  Levy,  1  McCord  Eq.  (So. 

2  Burn.   &   p:ast,   366;  conira,  Phil-  Car.)  107. 

brooks  V.  McEwen  29  Ind.  347.  ■»  Capel  t'.  Butler,  2  Simons  &   Stu- 

''Toomer  v.  Dickerson,  37  Ga.  428.  art,  457. 


CASES   HOLDING   SURETY   NOT   DISCHAEGED.  529 

erty  in  charge  of  the  court  should  be  recorded,  tiud  a  lien  on 
property  of  a  lessee  was  lost  by  the  failure  of  the  clerk  of  the 
court  to  record  such  a  recognizance,  it  was  held,  a  surety  for  the 
rent  was  not  thereby  discharged,  on  the  ground  that  the  rule  of 
court  was  not  made  for  the  benefit  of  sureties,  and  that  the  own- 
ers of  the  property  should  not  be  prejudiced  by  the  uegligence 
of  the  officers  of  the  court.' 

§  390.  Cases  holding  surety  not  discharged  by  negligence  of 
creditor. — The  distinction  between  the  cases  where  the  creditor  is 
bound  to  active  diligence  and  those  where  he  may  remain  passive, 
is  often  extremely  fine.  As  instances  of  the  latter,  the  following 
may  be  mentioned:  Principal  and  surety  executed  a  note  due  in 
a  3^ear.  At  the  same  time  the  principal  assigned  to  tlie  creditor, 
as  collateral  security,  a  bond  and  mortgage,  due  after  the  note. 
The  note  was  not  paid,  and  the  creditor  did  not  proceed  to  fore- 
close the  mortgage  till  more  than  two  years  after  it  was  due,  and 
then  commenced  foreclosure  proceedings,  and  discontinued  them. 
If  he  had  foreclosed  the  mortgage  at  maturity,  and  obtained  a 
judgment  for  the  balance  due,  it  might  have  been  collected  from 
the  maker  of  the  mortgage,  but  he  failed  to  do  this  till  the  mort- 
gagor became  insolvent.  Held,  the  surety  was  not  discharged. 
The  court  admitted  that  where  property  is  pledged  by  the  prin- 
cipal for  the  payment  of  the  debt,  and  it  is  lost  by  the  negligence 
of  the  creditor,  the  surety  is  discharged,  but  said  this  was  not 
such  a  case.  The  note  became  due  before  the  mortgage,  and 
should  have  been  paid  by  the  surety  at  maturity.  The  only  loss 
which  arose  was  from  not  getting  judgment  against  the  mort- 
gagor for  the  balance  above  the  value  of  the  mortgaged  premises. 
It  was  simply  a  case  of  failure  to  prosecute,  which  did  not  dis- 
charge the  surety.^  It  has  been  held  that  the  negligence  of  a 
sheriff,  in  permitting  property  levied  on  by  him  to  be  destroyed 
by  fire  before  a  sale  thereof,  does  not  discharge  a  surety  for  the 
debt.'  "Where  a  creditor  had  a  judgment,  which  was  a  lien  on 
real  estate  of  the  principal,  and  execution  was  issued  on  the 
judgment,  but  not  levied  on  the  real  estate  because  the  creditor 
■was  afraid  it  would  not  sell,  and  that  levying  on  it  would  prevent 

^  Jephson  v.  Maunsell,  10  Irish  Eq.  "^  Scbroepell  v.  Shaw,  3  New  York, 

Rep.  38;  affirmed,  Jephson  v.  Maun-      446. 

sell,  10  Irish,  Eq.  Rep.  132.  ^  Griff  v.  Steamboat  Stacy,  12  La. 

An.  8, 

34 


530     DISCHARGE  OF  SURETY  BY   NEGLIGENTLY  LOSING  SECUKITY. 

the  collection  of  the  debt  otherwise,  and  the  lien  was  lost,  but  the 
creditor  acted  in  good  faith,  it  was  held,  the  surety  was  not  dis- 
charged.' A  sold  land  to  B  and  took  his  notes,  with  C  as  surety 
for  the  jDurchase  price.  A  gave  B  a  title  bond  for  a  deed,  condi- 
ditioned  that  the  land  should  be  conveyed  in  twelve  months,  and 
might  have  retained  the  legal  title  as  security,  but  did  not  con- 
template doing  so,  and  there  was  no  agreement  that  he  should  do 
so.  More  than  twelve  months  after  the  date  of  the  bond,  A  made 
B  a  deed  for  the  land,  and  took  back  a  mortgage  upon  the  repre- 
sentation of  B  that  he  would  sell  the  land  and  pay  the  debt,  or 
would  otherwise  return  the  deed.  A  was  induced  by  fraud  not  to 
record  the  mortgage,  and  the  land  was  lost  as  security,  but  it  was 
held  that  the  surety  was  not  thereby  discharged.^  Where  a  cred- 
itor was  bound,  if  requested,  to  proceed  and  foreclose  mortgages 
on  the  property  of  the  principal,  and  such  request  was  made,  it 
Avas  held  that  this  did  not  impose  upon  him  an  absolute  duty  to 
enforce  the  securities  without  delay.  It  was  only  necessary  that 
he  should  act  in  good  faith,  and  be  free  from  gross  neglect.  If 
he  unreasonably  delays  or  acts  in  bad  faith,  or  is  guilty  of  gross 
negligence,  whereby  the  value  of  the  securities  is  impaired,  the 
sureties  will  be  discharged  j9r6»  tanto^ 

§  391.  Cases  holding  surety  not  discharged  by  negligence  of 
creditor. — A  lessor  permitted  several  months  to  elapse  witliout 
proceeding  against  her  tenants  for  the  collection  of  rent,  and 
when  she  commenced  suit  therefor,  the  effects  upon  which  the 
law  established  a  privilege  in  her  favor,  had  been  removed  be- 
yond her  reach.  Held,  the  surety  for  the  rent  was  not  thereby 
discharged.'  Where  a  bond  provided  that  the  principal  should 
account  for  and  pay  over  from  time  to  time  all  such  tolls  as  he 
should  collect,  it  was  held  that  the  sureties  were  not  discharged 
by  the  laches  of  the  obligees,  in  not  examining  his  accounts  for 
eight  or  nine  years,  and  not  calling  upon  him  as  soon  as  they 
might  have  done  for  sums  in  arrear,  or  unaccounted  for."  Cer- 
tain notes  deposited  for  safe  keeping  with  a  bank  were  assigned 
by  the  creditor  to  the  surety,  for  his  indemnity.     The  bank   did 

'Farmers  Bank  of  Canton  v.  Ray-  ■'Parker  v.  Alexander,   2  La.    An. 

nolds,  13  Ohio,  85.  188. 

» Coombs  V.  Parker,  17  Ohio,  289.  » Trent  Navigation  Co.  v.  PTarley,  10 

*  Black  River  Bank  v.  Page,  44  New  East,  34. 
York,  453. 


FAILURE  TO  PEESENT  CLAIM  AG^VINST  ESTATE  OF  PEINCIPAL.    531 

not  cause  tliem  to  be  protested,  so  as  to  cliarge  the  indorsers,  and 
it  was  held  the  surety  was  not  thereb}'"  discharged.  As  tlie  notes 
were  deposited  for  safe  keeping,  and  not  for  collection,  the  bank 
was  under  no  obligation  to  do  anything  with  them.'  Where  a 
statnte  required,  and  an  order  of  court  provided,  that  a  mortgage 
should  be  taken  for  the  purchase  money  of  property  sold  at  ad- 
ministrator's sale,  and  a  surety  became  bound  for  the  purchase 
money  of  property  so  sold,  supposing  that  such  mortgage  would 
be  taken,  but  no  misrepresentation  was  made  to  him,  and  no  mort- 
gage was  taken,  it  was  held  he  was  not  discharged.^ 

§  392.  Surety  not  discharged  by  failure  of  creditor  to  present 
claim  against  estate  of  deceased  principal — Other  cases. — If  the 
principal  dies,  and  the  creditor  fails  to  present  his  claim  against  the 
principal's  estate  until  all  remedy  against  the  estate  is  lost  by  rea- 
son of  such  delay,  the  surety  is  not  thereby  discharged,  even  though 
the  estate  was  solvent,  and  the  claim  would  have  been  paid  if 
presented.  The  creditor  is  under  no  greater  obligation  to  pre- 
sent his  claim  against  the  estate  than  he  would  have  been  to  sue 
the  principal  if  he  had  not  died.  It  is  a  case  of  mere  passive 
delay,  unaccompanied  by  any  trust.  The  discharge  of  the  estate 
of  the  principal  is  not  in  such  case  the  act  of  the  principal,  but  is 
the  act  of  the  law.'     It  is  no  defense  to  the  sureties  on  a  county 

'  New  Orleans  Canal  and  Banking  years  to  levy  an  execution  on  real  es- 

Co.  V.  Escoffie,  2  La.  An.  830.  tate    of  the    principal,  does  not  dis- 

•2  Wornell  v.  Williams,    19    Texas,  charge  the  surety,    see  Lumsden    v. 

180.     Holding  that  the  neglect  of  the  Leonard,  55  Ga.   374.     See,  also,  on 

creditor  to  make  the  money  out  of  this  subject,    Morgan  v.   Coffman,  8 

property  of  the  principal  levied  on  by  La.  An.  56.     Holding,  that  if  a  sui-ety 

attachment,  will  not  release  the  surety  who  is  discharged  aftei'wards  with  full 

after  a  judgment  against  him  at  law,  knowledge  of   the  facts  promises  to 

see  Herrick  v.  Orange  Co.  Bank,  27  pay  the  debt,  he  is  bound  without  any 

Vt.  584.     Holding  that  the  neglect  of  new  consideration,  see  Bank  at  Deca- 

the  creditor  in  permitting  the  lien  of  a  tur  v.  Johnson,  9  Ala.  621. 

judgment  against  a  principal  to  be  *Cain  v.  Bates,  Admr.  35  Mo.  427; 

lost  by  failing  to  revive  and  keep  it  Peoples.  White,   11  111.  341;  Hatha- 

alive,  does  not  discharge  the  surety,  way  v.  Davis,  33  Cal.   161;  Minter  v. 

see  Mundorff  v.  Singer,  5  Watts  (Pa.)  Branch  Bank  at  Mobile,  23  Ala.  762; 

172.     Holding  that  the  surety  is  not  Johnson  v.  Planters  Bank,  4  Smedes  & 

discharged  by  the  failure  of  the  credit-  Mar.  (Miss.)165;  Hooks  v.  Branch  Bank 

or  to  prosecute  an  appeal  in  a  suit  at  Mobile,  8  Ala.  580;  Cohea  v.  Com- 
against  the  principal,   see  Terrell  v.    .  missioners,  7  Smedes  &  Mar.  (Miss.) 

Townsend,    6  Texas,    149.     Holding  437;  Fetrow  «.  Wiseman,  40  Ind.  148; 

that  a  delay  of  the  creditor  for  four  Sibley  v.  McAllister,   8  New  Hamp. 


532     DISOHAKGE  OF  SUKETY  BY  NEGLIGENTLY  LOSING  SECURITY. 


collector's  bond  that  they  had  no  notice  of  the  collector's  default 
till  more  than  three  years  after  his  death,  when  all  remedy  against 
his  estate  was  barred  by  lapse  of  time.'  Where  a  principal  as- 
signed all  his  property  for  the  benefit  of  his  creditors,  and  a  cred- 
itor did  not  present  his  claim  for  payment  to  the  assignee,  it  was 
held  that  the  surety  therefor  was  not  discharged.^  A  made  an 
assignment  to  B  for  the  benefit  of  his  creditors,  and  C  became 
B's  surety  as  such  assignee.  B  realized  enough  from  the  assigned 
property  to  pay  seventy-one  cents  on  the  dollar  of  A's  debts.  D, 
a  creditor  of  A,  did  not  present  his  claim  to  B  for  payment,  and 
B  having  made  an  assignment  for  the  benefit  of  his  creditors,  D 
failed  to  present  his  claims  to  B's  assignee,  and  no  part  of  it  was 
paid  by  either  assignee.  Held,  that  C,  as  surety  of  B,  was  liable 
on  his  bond  to  D.  It  was  a  case  of  mere  passive  delay,  which 
would  not  discharge  a  surety.' 


389;  Ray  v.  Brenner,  12  Kansas,  105; 
Vredenburgh  v.  Snyder,  6  Iowa 
(Clarke)  39;  Mitchell  v.  Williamson,  6 
Md.  210;  Moore  v.  Gray,  26  Ohio  St. 
525;  Villars  v.  Palmer,  67  111.  204; 
M'Broom  v.  The  Governor,  6  Port. 
(Ala.)  32;  Macdonaldr.  Bell,  3  Moore's 
Priv.  Co.  Cas.  315;  Pearson  v.  Gayle, 


11  Ala.  278;  Asliby  v.  Johnston,  23 
Ark.  163.  To  contrary  effect,  see  Dor- 
sey  V.  Wayman,  6  Gill.  (Md.)  59. 

1  Parks  V.  The  State,  7  Mo.  194. 

2  Dye  V.  Dye,  21  Ohio  St.  86. 

'  Richards  v.  The  Commonwealth,  40 
Pa.  St.  146. 


CHAPTER  XIX. 


OF  SURETIES  ON  OBLIGATIONS  GIVEN  IN  THE  COUESE  OF  THE 
ADMINISTRATION    OF   JUSTICE. 


Section. 

Surety  on  appeal  bond.  Judg- 
ment by  anothei-  court.  Judg- 
ment against  one  of  two  prin- 
cipals. Changing  plaintiffs, 
etc 393 

Which  set  of  sureties  bound  when 
there  are  two  appeals  in  the 
same  case  ,        .        .        .        .  394 

When  surety  in  appeal  bond  li- 
able to  former  surety  for  the 

debt 395 

When  surety  on  appeal  bond  not 
liable  for  debt.  When  liable  for 
costs 396 

When  surety  on  appeal  bond  dis- 
charged if  his  risk  increased    .  397 

Judgment  against  surety  in  ap- 
peal bond  without  suit  .         .  398 

When  surety  on  appeal  bond  lia- 
ble to  suit  if  execution  agamst 
principal  stayed         .        .        .  399 

LiabiHty  of  surety  in  appeal  bond 
if  judgment  afterwards  rendered 
by  consent  of  principal,  etc.       .  400 

When  surety  on  appeal  bond  lia- 
ble for  final  judgment        .        .  401 

How  surety  on  appeal  bond  affect- 
ed by  death  of  principid    .         .  402 

Surety  on  appeal  bond  only  bound 
for  particular  judgment  appeal- 
ed from.    Other  cases       .        .  403 

Miscellaneous  cases  as  to  liability 
of  sureties  on  appeal  bonds       .  404 

No  defense  to  surety  in  forthcom- 
ing bond  that  property  did  not 
belong  to  principal    .        .        .  405 

Miscellaneous  cases  concerning 
sureties  on  forthcoming  bonds  .  406 


Section. 

Liability  of  surety  on  bond  given 
to  dissolve  attachment  when  de- 
fendants cha.nged  or  judgment 
got  against  only  part  of  defend- 
ants   407 

When  judgment  against  principal 
conclusive  agamst  surety  on 
bond  to  dissolve  attachment      .  408 

How  surety  on  bond  to  dissolve  at- 
tachment, and  on  appeal  bond, 
affected  by  bankruptcy  of  prin- 
cipal   409 

Miscellaneous  cases  concerning 
sureties  on  bonds  given  in  at- 
tachment proceedings        .        .  410 

Surety  on  injunction  bond  not  lia- 
ble for  judgment  if  it  is  misde- 
scribed 411 

Liability  of  surety  on  injunction 
bond  for  judgment,  for  dama- 
ges, for  interest,  etc.  .        .  412 

Liability  of  surety  in  injunction 
bond  if  complainant  dismiss  his 
bill  by  agreement  with  defend- 
ant     413 

Liability  of  surety  in  injunction 
bond  when  one  only  of  several 
for  whom  he  is  liable,  is 
charged 414 

Miscellaneous  cases  concerning 
sureties  in  injunction  bonds      .  415 

When  surety  in  replevin  bond  dis- 
charged by  reference  of  replev- 
in suit  to  arbitrators  .        ,  416 

When  surety  in  replevin  bond 
bound  for  money  judgment 
against  his  principal  .         .  417 

Whether  surety  in  replevin  bond 


(533) 


534    OBLIGATIOXS   GIVEN  IN  COURSE  OF  xlDMIXISTRATION  OF  JUSTICE. 

Section.  Section. 

liable  if  defendant  in  replevin  Liability  of  surety  for  costs.    Spe- 

suit  changed,  etc.       .        .        .418  cial  instances     ....  422 

Surety  in  replevin  bond  not  liable  Surety  on  indemnifying  bond  to 

when  return  of   property  ren-  sheriff,  liable  with  sheriff  in  tres- 

dered    impossible    by    act    of  pass 423 

law 419  Miscellaneous    cases    concerning 

Miscellaneous    cases    concerning  sureties  on  bonds  given  in  the 

sureties  in  replevin  bond    .        .  420  course  of  the  administration  of 

Liability  of  surety  on  stay  bond  .  421         justice 424 

§  393.  Surety  on  appeal  bond — Judgment  by  another  court — 
Judgment  against  one  of  two  principals — Changing  plaintiff,  etc. 
— Such  cases  relating  to  sureties  on  obligations  given  in  the  course 
of  the  administration  of  justice  as  do  not  more  properly  come 
under  some  other  subdivision  of  this  work,  will  now  be  noticed. 
Sureties  on  sucli  obligations,  like  all  other  sureties,  have  a  right  to 
stand  on  the  strict  terms  of  their  contract.  An  appeal  bond  front 
a  judgment  rendered  by  a  justice  of  the  peace,  provided  that,  if 
the  parties  appealing  should  pay  and  satisfy  whatever  judgment 
might  be  rendered  by  the  circuit  court  of  Hancock  county  upon 
the  dismissal  or  trial  of  the  appeal,  then  the  obligation  should  be 
void.  The  statutory  form  j^i'escribed  for  appeal  bonds  was: 
"  shall  pay  whatever  judgment  shall  be  rendered  by  the  court 
upon  dismissal  or  trial  of  said  aj^peal."  The  venue  in  the  case 
was  changed  from  Hancock  county  to  another  county,  and  a  judg- 
ment was  there  rendered  against  the  party  appealing.  Held,  the 
surety  was  not  liable  on  the  bond.  The  bond  was  bindhig  on  the 
surety  so  far  as  its  terms  went,  but  no  further,  and  no  judgment 
had  been  rendered  by  the  circuit  court  of  Hancock  county. 
The  court  said  that  if  the  bond  had  been  in  statutory  form,  the 
surety  would  have  been  liable.^  Judgment  was  rendered  in  the 
court  of  common  pleas,  and  appeal  bond  with  sureties  was  given 
to  the  "Supreme  Court"  of  a  county.  The  Supi-eme  Court  had 
before  that  time  been  abolished,  and  a  "District  Court"  estab- 
lished in  its  stead.  The  case  was  heard  in  the  District  Court. 
Held,  the  surety  in  the  appeal  bond  was  not  liable  for  any  judg- 
ment rendered  therein.^  Judgment  was  recovered  before  a  jus- 
tice against  A  and  B,  who  jointly  appealed  and  gave  an  appeal 
bond  with  C  as  surety,  wliicli  stated:  "I  promise  and  under- 
take that  said  appellants,  if  judgment  be  adjudged  against  them 

'  Sharp  V.  Bedell,  5  Oilman  (111.)  88.     ,     '^  MjTres  r.  Parker,  6  Ohio  St.  501. 


4 
i 


WHICn    SUEETIES   BOUND    WHEN   TWO    APPEAL    BONDS.  535 

on  the  appeal,  will  satisfy  sucli  judgment  and  costs,"  etc.  Judj;- 
ment  in  tlie  court  above  having  been  rendered  against  A  only,  it 
was  held  that  C  was  not  liable  therefor.^  But  it  has  been  held, 
that  the  sureties  on  an  undertaking  in  the  usual  form  on  an  ap- 
peal from  a  judgment  against  two  or  more  defendants  severally 
liable,  are  bound,  if  the  judgment  is  affirmed  as  to  one  of  the  de- 
fendants, although  it  is  reversed  as  to  the  others.  The  court 
said  it  was  the  same  as  if  each  defendant  had  appealed  separate- 
ly, "  and  we  are  to  construe  the  undertaking  in  reference  to  the 
character  of  the  judgment  it  was  given  to  secure."  *  A  super- 
sedeas bond  was  given  to  stay  proceedings  pending  a  writ  of  er- 
ror. One  person  was  erroneously  joined  as  co-plaintiff  in  the 
writ,  and  having  no  interest  in  the  proceedings,  his  name  was 
stricken  out  in  the  Supreme  Court  after  the  bond  was  given. 
Held,  that  as  the  law  permitting  such  amendment  was  known  to 
the  surety  in  the  bond  when  he  became  bound,  he  must  be  held  to 
have  signed  subject  to  all  such  contingencies,  and  he  was  not  dis- 
charged by  striking  out  the  name.'  But  where  the  plahitiff  in  a 
case  was  changed  after  the  surety  in  an  appeal  bond  had  become 
liable,  it  was  held  that  such  surety  was  not  liable  for  any  judg- 
ment which  might  thereafter  be  rendered  in  the  case.* 

§  394.  Which  set  of  sureties  bound  ■when  there  are  t'wo 
appeals  in  the  same  case. — A  judgment  was  rendered  before  a 
justice,  from  which  the  defendant  appealed  to  the  county  court, 
and  gave  a  bond  with  sureties.  This  judgment  was  affirmed  in 
the  county  court  and  the  defendant  appealed  to  the  Superior 
Court,  giving  a  new  bond  with  other  sureties.  The  judgment 
was  affirmed  in  the  Superior  Court,  and  it  was  held  that  the  sure- 
ties in  the  first  bond  were  liable  therefor.  The  court  said:  "The 
surety  for  an  appeal  from  a  justice,  is  bound  for  the  action  and 
obliged  to  perform  whatever  judgment  is  obtained  in  it."  ^  But 
in  a  similar  case  it  was  held  that  the  execution  of  the  latter  bond 

•  Lang  V.  Pike,  27  Ohio  St.  498.  To  ''FJiilhps  v.  VTells,  2  Sneed  (Tenn.) 
similar  effect,  see  Grieff  v.  Kirk,    17      154. 

La.    An.  25;  Shimer  v.  Hightshue,  7  *  Dolby  v.  Jones,  2  Dev.  Law.  (Nor. 

Blackf.  (Ind.)  238.  Car.)  109,   per  Hall,  J.     Holding  that 

^  Seacord  v.  Morgan,  3  Keyes  (N.  the  taking  of*  a  bond  by  a  circuit  court 

Y.)  636;  Id.  4  Abb.  Rep.  Ora.  Cas.  as   a  substitute  for  an  appeal    bond 

172.  given  before   a  justice,  does  not  dis- 

*  Sherry  v.  State  Bank,  6  Indiana  cha.rge  the  sureties  in  the  latter  bond, 
397.  see  Ashby  r.  Sharp,  1  Litteli  (Ky.j  156. 


536    OBLIGATIONS   GIVEN  IN   COUESE   OF  ADMINISTRATION  OF  JUSTICE. 

operated  as  a  discliarge  of  the  sureties  on  the  former,  on  the 
o-round  tliat  the  second  appeal  extended  the  time  of  payment,  and 
deprived  tlie  sureties  on  the  first  bond  of  forcing  their  principal 
to  pay,  and  thereupon  proceeding  against  him.'  A  defendant  in 
the  circuit  court  of  the  United  States  gave  bond  with  surety,  condi- 
tioned to  keep  and  perform  tlie  final  decree  in  the  cause,  and  pay 
all  sums  which  might  therein  and  thereby  be  decreed  to  be  paid 
by  him.  The  circuit  court  rendered  a  final  decree  against  him 
for  damages  and  costs,  from  which  he  appealed  to  the  Supreme 
Court  of  tlie  United  States,  and  gave  bond  with  a  different  surety 
to  pay  all  such  costs  as  that  court  should  decree  to  be  paid  to  the 
plaintiff  upon  afiirmance  of  the  decree  of  the  circuit  court.  The 
Supreme  Court  afiirmed  tbat  decree  with  costs  and  interest,  and 
pursuant  to  its  mandate  the  circuit  court  decreed  that  its  own 
former  decree  be  afiirmed  with  costs  and  interest,  and  that  execu- 
tion issue  for  the  sum  found  due  by  that  decree,  with  interest 
from  its  date,  and  for  the  further  amount  of  the  costs  decreed  by 
the  Supreme  Court,  and  the  costs  taxed  in  the  circuit  court  upon 
the  return  of  the  mandate.  Held,  that  this  was  the  final  decree 
in  the  case  within  the  meaning  of  the  first  bond.^ 

§  395.  "When  surety  in  appeal  bond  liable  to  former  surety 
for  the  debt. — If  principal  and  surety  are  liable  for  a  debt,  and 
judgment  is  recovered  against  the  principal,  from  which  he  ap- 
peals and  gives  an  appeal  bond  with  surety,  the  liability  of  such 
latter  surety  is  a  fund  to  which  the  original  surety  has  a  right  to 
look  for  the  payment  of  the  debt,  and  if  the  creditor  releases  the 
surety  in  the  appeal  bond,  he  discharges  the  original  surety  to  the 
extent  that  he  is  injured  thereby.^  Judgment  was  recovered 
against  A,  and  he  staj^ed  the  judgment,  giving  B  as  surety  on  the 
stay  bond,  which  was  conditioned  for  the  absolute  payment  of  the 
money  on  a  certain  day.  An  execution  was  issued  against  A  and 
Tj  on  the  stay  bond,  which  might  have  been  levied  on  property  of 
A  sutiicient  to  satisfy  it.  While  the  execution  was  in  the  hands 
of  the  sheriff',  A  appealed  the  case  to  the  Supreme  court  and  gave 
an  appeal  bond  with  C  as  surety.  Pending  the  appeal,  A  became 
insolvent.     The  judgment  was  afiirmed,  and  B  was  compelled  to 

'  Winston    v.    RJvcs,    4    Stew.     &  « Jordan  r.   Agawam  Woolen    Co., 

Port.  (Ala.)  269.     For  dictum  to  same  106  Mass.  571. 

effect,  see  Justices  f.  Selman,  6   Ga.  s^.-^^-^gg  -^^^.^^   54  New  York,  397; 

^32.  Lewis  V.  Armstrong,  47  Ga.  289. 


LIABILITY   FOR   DEBT    OF   SURETY    ON   APPEAL   BOND.  5d7 

■ 

paj  it.  Held,  he  was  entitled  to  subrogation  to  the  creditor's 
rights  against  C,  and  might  collect  from  C  the  money  so  paid 
from  him.' 

§  396.  When  surety  on  appeal  bond  not  liable  for  debt — 
When  liable  for  costs. — The  condition  of  a  bond  to  prosecute  an 
appeal  in  the  nature  of  a  writ  of  error,  was  as  follows:  "Now, 
if  the  said  A,  B  and  C  shall  well  and  truly  prosecute  said  appeal 
with  effect,  or,  in  case  of  a  failure  therein,  pay  and  satisfy  all 
costs  and  damages  that  may  be  awarded  against  him  for  wrong- 
fully prosecuting  said  appeal,  then  this  obligation  to  be  void." 
Held,  the  sureties  were  only  bound  for  the  damages  and  costs, 
and  not  for  the  principal  debt,  although  the  statute  provided  that 
in  such  cases  the  bond  should  be  given  for  the  payment  of  the 
debt.'^  The  condition  of  an  appeal  bond  from  a  justice  was  as 
follows:  "to  be  void  on  condition  that  the  said  *  (principal) 
doth  prosecute  an  appeal,  by  him  prayed  and  obtained,  to  the 
next  circuit  court."  The  principal  prosecuted  the  appeal,  but 
was  defeated.  Held,  the  surety  was  not  liable  for  the  judgment 
against  the  principal.  The  surety  was  only  liable  that  the  prin- 
cipal should  prosecute,  and  he  had  done  that.^  A  party  about  to 
commence  a  suit  by  capias,  gave  bond  as  required  by  statute, 
with  a  surety,  binding  the  surety  that  the  principal  "  should 
prosecute  his  suit  with  effect,  or,  in  case  of  failure,  pay  the  costs." 
The  plaintiff  recovered  in  the  court  below,  but  the  judgment  was 
reversed  in  the  supreme  court,  and  the  surety  on  the  above  bond 
was  sued  for  the  costs  of  the  supreme  court.  Held,  he  was  not 
liable  for  such  costs,  nor  for  any  costs  except  those  in  the  court 
where  the  suit  was  commenced."  The  bill  of  a  complainant  was 
dismissed  in  the  court  below,  and  he  appealed  to  the  supreme 
court,  giving  a  bond  with  surety  on  such  appeal.  The  judgment 
having  been  affirmed  in  the  supreme  court,  it  was  held  that  the 
surety  in  the  appeal  bond  was  not  liable  for  the  costs  in  the  court 
below.' 

§  397.  When  surety  in  appeal  bond  discharged  if  his  risk  in- 
creased.— A  case  was  commenced  before  a  justice  in  vv'hich  judg- 

iRellart?.  Williams,  10  Bush  (Ky.)  s^lbertson?'.  McGee,7Yerg.  (Tenn.) 

216.  .  lOG. 

''Banks  I?.  Brown,  4  Yerger  (Tenn.)  ^Hawkins  v.   Thornton,    1    Yerger 

193.  (Tenn.)  146. 

6  Terry  v.  Stukely,  3  Yerger  (Tenn.)  506. 


538    OBLIGATIONS  GIVEN"  IN  COURSE  OF  ADMINISTKATION  OF  JUSTICE. 

ment  was  recovered  against  the  defendant,  and  he  appealed  to  the 
circuit  court.  In  the  circuit  court,  the  ad  damnum  was,  by  stip- 
ulation between  tlie  principal  and  creditor,  increased  to  an  amount 
beyond  the  jurisdiction  of  a  justice.  The  case  was  afterwards 
tried  and  a  judgment  recovered  against  the  defendant  for  an 
amount  within  the  jurisdiction  of  a  justice:  Held,  the  sureties 
in  the  appeal  bond  were  discharged.  The  court  said  if  the  ad 
damnum  had  been  increased  in  a  manner  which  the  court  might 
have  ordered,  without  consent  of  parties,  the  sureties  would  not 
have  been  discharged,  because  that  woukl  have  been  a  contingency 
which  they  should  have  contemplated.  But  their  contract  was 
strictissiini  juris,  and  they  were  not  bound  by  any  unauthorized 
act  of  their  principal.^  Where  a  capias  issued  in  a  civil  case  by  a 
justice  of  the  peace,  was  defective  in  not  stating  tlie  christian 
names  of  tlie  plaintiffs,  and  a  judgment  was  recovered  before  the 
justice,  and  an  appeal  taken,  and  the  capias  was  amended  in  the 
court  above  by  inserting  said  christian  names,  it  was  held  the 
surety  on  the  appeal  bond  was  discharged  by  such  amendment.^ 
An  appeal  was  taken  from  the  court  below  to  the  court  of  ap- 
peals, and  an  appeal  bond  was  given.  Pending  the  ap])eal,  by 
act  of  the  legislature,  the  court  of  appeals  was  authorized  to  give 
damages  to  the  extent  of  ten  per  cent,  in  appeal  cases,  and  gave 
five  per  cent,  damages  in  this  case:  Held,  the  sureties  in  the  ap- 
peal bond  were  not  discharged  by  the  passage  of  the  act.  The 
court  said  the  sureties'  "contract  was  entered  into  subject  to  the 
power  of  the  legislature  to  change  the  law  in  these  respects,  and 
^  they  are  bound  by  the  contract  construed  by  the  law  as  it  ex- 
ists at  the  time  they  are  called  upon  to  perform  it.  This  class  of 
cases  has  no  analogy  to  those  where  parties  have  by  their  own 
acts  changed  their  contract  to  the  j^rcjudico  of  a  surety  of  one 
without  his  assent."  ^ 

§  398.  Judgment  against  surety  in  appeal  bond  without  suit. 
— "Where  a  statute  so  provides,  the  supreme  court  may  give 
judgment  against  the  sureties  on  the  appeal  bond  at  the  same 
time  the  judgment  appealed  from  is  affirmed.  "  Taking  the  pro- 
visions of  the  statutes  together,  the  appellant  who  desires  a  stay 
of  execution  pending  an  appeal,  causes  a  supersedeas  bond  to  be 

« 
'  Evers  v.  Sager,  28  Mich.  47.  ^  Jiomer  v.  Lyman,  4  Keycy  (N.  Y.) 

Urwin  «;.  Sanders,  5  Yerg.  (Tenn.)  237,  per  Grover,  J.  Id.  2  Abb.  Rep. 
287.  Om.  Cas.  399. 


JITDGMENT   RENDERED   BY    CONSENT   OF   PEINCIPAE.  539 

executed,  and  the  sureties  on  tlie  bond  become,  in  legal  effect, 
parties  to  the  suit,  and  agree  that  if  tlie  judgment  be  affirmed, 
judgment  may  be  rendered  against  them  for  costs,  damages  and 
the  amount  of  the  judgment  below,  etc.;  the  statute  authorizing 
this  judgment  being  part  of  their  contract  as  fullj  as  if  incor- 
porated into  the  supersedeas  bond."  Although  the  sureties  are 
new  parties,  the  subject  matter  of  the  suit  is  the  same,  and  the 
supreme  court  does  not  exercise  original  jurisdiction  in  rendering 
such  judgment.' 

§  390.  When  surety  on  appeal  bond  liable  to  suit,  if  esecu- 
tion  against  principal  stayed. — It  has  been  held,  that  SO  long  as 
there  is  an  order  of  court  in  force  staying  execution  on  the  judg- 
ment against  a  party  who  appealed  from  a  lower  court,  the  sure- 
ties on  his  appeal  bond  cannot  be  lawfully  sued,  the  reason  given 
being  that  if  they  were  in  such  case  liable  to  a  suit,  they  would 
be  in  a  worse  position  than  their  principal."  But  where  several 
sureties  in  an  appeal  bond  agreed  to  pay  a  judgment  which  had 
been  rendered  in  a  district  court  of  Montana  Territory,  if  the 
same  should  be  affirmed  by  the  supreme  court  of  the  teriitory,  it 
was  held  tliat  such  sureties  were  liable,  and  suit  could  be  brought 
against  them  as  soon  as  tlie  judgment  had  been  so  affirmed,  not- 
withstanding the  fact  that  an  appeal  had  been  properly  taken 
from  the  supreme  court  of  the  territory  to  the  supreme  court 
of  the  United  States,  and,  that  proceedings  had  been  legally 
stayed  on  the  judgment.  They  were  bound  by  the  terms  of  the 
bond.' 

§  400.  Liability  of  surety  in  appeal  bond  if  judgment  after- 
wards rendered  by  consent  of  principal,  etc.— It  has  been  held 
that  if  the  judgment  appealed  from  is  affirmed  by  agreement  be- 
tween the  principal  and  creditor,  the  surety  in  the  appeal  bond  is 
discharged,  on  the  ground  that  if  the  "  non-performance  of  the 
stipulated  acts  was  occasioned  by  the  conduct  of  the  creditor,  or 
was  the  result  of  an  agreement  between  him  and  the  principal 
obligor,  the  sureties  are  discharged."  "  Precisely  the  opj^osite  has 
been  held,  on  the  ground  that  the  necessary  legal  effect  of  the 

'  White   V.  Prig-more,  29  Ark.  208,  ^  Parnell  v.  Hancock,  48  Cal.  452. 

per  English,  C.  J.;     Calhxhan  r.  Sa-  ^Bullard    v.    Gilette,    1    Montana, 

leski,  29  Ark.  216.     See,  on  this  sub-  509. 

ject.    Ex    pciyte    Miller,     1    Yerger,  "» Johnson  r.  Flint,  34  Ala.  673,  per 

(Tenn.)  435.  Walker,  J. 


510    OBLIGATIONS  GIVE]^  IN  COUKSE  OF  ADMINISTRATION  OF  JUSTICE. 

execution  of  tlic  appeal  bond  b}^  the  sureties,  M^as  to  confer  upon 
the  principal  full  jjowcr  to  do  whatever  he  might  deem  necessary 
in  the  ease.'  It  has  also  been  lickl  that  if  an  appeal  is  dismissed 
by  consent  of  tlie  creditor  and  the  principal,  it  operates  as  an 
atUrniance  of  the  judgment,  and  cliarges  the  sureties  in  the  ap- 
peal bond.^  Where  the  plaintiff,  in  an  appeal  suit  from  a  justice 
took  a  non-suit  in  the  circuit  court,  which  was  during  the  term 
set  aside  by  agreement  between  the  plaintiff  and  the  principal, 
and  the  case  was  tried  and  judgment  rendered  against  the  prin- 
cipal, it  was  held  the  sureties  on  the  appeal  bond  were  liable  for 
such  judgment.' 

§  401.  When  surety  on  appeal  bond  liable  for  final  judgment. 
— The  sureties  on  an  appeal  bond  from  an  order  made  at  a  spe- 
cial term  of  the  supreme  court,  which  is  reversed  at  the  general 
term,  and  such  reversal  set  aside  by  the  court  of  appeals,  and 
the  order  of  the  court  below  affirmed,  are  liable  on  their  bond, 
and  are  not  discharged  by  the  reversal  at  the  general  term.  The 
court  said:  "  The  condition  may  as  well  refer  to  an  affirmance  by 
the  judgment  of  any  court  to  which  the  case  ma}^  go  by  appeal, 
or  the  final  decision  of  the  action  in  the  court  of  last  resort."  * 
From  the  judgment  of  a  circuit  court  an  appeal  was  prayed  to 
the  supreme  court,  and  a  bond  with  surety  given.  The  judg- 
ment was  reversed  by  the  supreme  court,  but  at  the  next  term 
thereof  a  rehearing  was  granted,  and  the  judgment  was  affirmed. 
After  the  judgment  was  reversed,  and  before  it  was  affirmed  on 
rehearing,  the  surety,  without  fault  on  the  part  of  the  creditor, 
parted  with  secureties  which  he  held  for  his  indemnity.  Held, 
he  was  liable  on  his  bond  upon  the  final  affirmance  of  the  judg- 
ment.^ 

§  402.  How  surety  in  appeal  bond  affected  by  death  of  prin- 
cipal.— Where  a  defendant  appeals  from  the  county  court  to  the 
superior  court  and  then  dies,  and  the  suit  is  revived  against  his 
administrator,  and  the  debt  is  established  against  the  latter,  but 
the  plea  of  fully  administered  is  found  in  his  favor,  the  sureties 
on  the  appeal  bond  are  bound  fur  the  debt  so  ascertained."  M 
appealed  from  a  judgment  obtained  against  him  in  the  county 

'  Ammons  «.  Whitehead,  31  Miss.  99.  ■*  p^oij;,^gQj^    ,,_    pii^pton,    25  New 

« Chase  v.  Beraud,  29  Cal.  138.  York,  4S4,  per  Allen,  J. 

» Bailey  v.  Rosenthal,  56  Mo.  385.  ^  Pearl  v.  Wellmans,  11  111.  352. 

« Piercy  v.  Piercy,  1  Ired.  Eq.  (Nor.  Car.)  214, 


MISCELLANEOUS  CASES  CONCERNING  SURETIES   ON  APPEAL  BONDS.    541 

court.  ]^,  as  surety,  signed  the  appeal  bond,  which  provided 
that  M  should  prosecute  the  appeal,  and  perform  the  judgment 
of  the  upper  court.  M  died,  and  the  appeal  in  consequence 
abated  and  was  not  revived.  Held,  IST  was  discharged.  Tlie  act 
of  God  prevented  M  from  prosecuting  the  appeal.  But  the  court 
said  that  if  after  M's  death  the  plaintiff  had  prosecuted  the  suit, 
l!T  would  have  been  responsible  for  the  result.' 

§  403.  Surety  on  appeal  bond  only  bound  for  particulai 
judgment  appealed  from — Other  cases. — The  surety  in  an  under- 
taking on  appeal  who  stipulates  to  pay  the  costs  awarded  against 
the  appellant  and  the  amount  of  the  judgment,  if  it  is  affirmed, 
is  liable  only  uj)on  the  affirmance  of  that  appeal  from  the  then 
existing  judgment,  and  where  there  is  an  interlocutory  order  of 
affirmance  in  the  appellate  court  reserving  leave  to  answer,  and 
new  pleadings  are  framed  and  a  new  judgment  rendered  on  the 
new  issue,  the  surety  cannot  be  held  to  jiay  such  judgment.^  An 
undertaking  on  appeal  conditioned  for  the  payment  of  something 
which  the  judgment  creditor  has  no  right  to  receive  (as  the  value 
of  the  use  and  occupation  of  premises  on  which  a  mortgage  was 
foreclosed),  is  not  as  to  such  condition,  binding  on  tlie  sureties.' 
Judgment  in  ejectment  was  recovered  against  certain  parties  wdio 
appealed  to  tlie  supreme  court,  and  gave  a  bond  conditioned  for 
tlie  payment  of  the  value  of  the  use  and  occupation  of  the  prem- 
ises pending  the  appeal.  Pending  the  appeal  the  plaintiff  in 
ejectment  conveyed  part  of  the  premises  involved  in  the  eject- 
ment suit:  Held,  this  did  not  discharge  the  sureties  on  the  bond, 
as  the  plaintiff  had  parted  with  no  securities  to  which  they  might 
have  been  subrogated.  They  had  no  claim  on  his  land."  If  sure- 
ties sign  an  appeal  bond  upon  the  express  condition  that  it  shall 
be  signed  by  the  principal,  and  it  is  not  signed  by  him,  they  are 
not  bound. ^ 

§  404.  Miscellaneous  cases  as  to  liability  of  sureties  on  ap- 
peal bonds. — A  J)arty  signed  an  appeal  bond  where  there  was  no 
legal  order  allowing  an  appeal.  Held,  he  was  not  bound.  "With- 
out an  order  allowing  an  appeal,  the  clerk  had  no  authority  to 
take  the  bond/     An  appeal  bond  provided   that   the   appellant 

'  Nelson  v.  Anderson,  2  Call  (Va.)  '  Whitney  v.  Allen,  21  Cal.  233. 

286.  *  De  Castro  v.  Clarke,  29  Cal.  11. 

■■'  Poppenhousen  v.  Seeley,   3  Abb.  ^  Ney  v.  Orr,  2  Montana,  559. 

Rep.  Cm.  Cas.  615.  *  Sears  v.  Bearsh,  7  La.  An.  539. 


54:2    OBLIGATIONS  GIVEN  IN  COUKSE  OF  ADMINISTRATION  OF  JUSTICE. 

should  prosecute  his  appeal  and  satisfy  whatever  judgment 
should  be  rendered  against  him.  He  did  not  prosecute  his  ap- 
peal, and  for  that  reason  no  judgment  was  rendered  against  him 
in  the  court  above.  Held,  the  surety  in  the  bond  was  lial)le,  be- 
cause no  appeal  had  been  prosecuted,  and  that  was  a  breach  of 
the  bond."  'An  appeal  was  dismissed  by  the  supreme  court, 
because  no  transcript  had  been  been  filed.  It  was  contended  by 
the  sureties  on  the  appeal  bond  that  the  consideration  of  the  bond 
had  failed  because  no  appeal  had  been  taken.  Held,  an  appeal 
had  been  taken  and  dismissed,  and  the  sureties  were  liable.^  An 
appeal  bond  provided  that  the  appellant  should  prosecute  his  ap- 
peal a!id  pay  "whatever  judgment"  should  be  rendered  against 
him.  The  judgment  was  in  part  reversed,  and  the  supreme  court 
rendered  a  judgment  for  part  of  the  judgment  below.  Held,  the 
sureties  on  the  bond  were  liable  for  this  judgment.'  An  appeal 
bond  recited  that  the  judgment  below  was  for  a  smaller  sum  than 
the  actual  amount  of  the  judgment.  Held,  the  sureties  on  the 
bond  were,  only  liable  for  the  sum  recited  as  the  amount  of  the 
judgment."  It  is  not  necessary,  in  order  to  charge  the  sureties  on 
an  appeal  bond,  that  an  execution  on  the  judgment  appealed 
from  should  be  issued  against  the  principal.^ 

§  405.  No  defense  to  surety  in  forthcoming  bond  that  property- 
did  not  belong  to  principal. — It  is,  as  a  general  rule,  no  defense  to 
the  surety  on  a  forthcoming  bond  that  the  property  seized  on  le- 
gal process,  as  property  of  the  principal,  did  not  belong  to  him. 
AYitli  reference  to  this  it  has  been  said  that  it  was  not  admissi- 
ble for  the  principal  "  or  his  surety  to  get  possession  of  the  prop- 
ert}^  by  the  execution  of  the  bond,  and  then  refuse  to  deli^-er  it 
to  answer  the  judgment  of  the  court,  according  to  the  exigencies 
of  the  bond,  because  it  belonged  to  a  third  person.     Wliat  busi- 

^  Champomier  ?'.  Washington  2  La.  see  Cooke  v.   Crawford,   1   Texas,  9. 

An.  1013.  Holding  that  a  surety  on  an  appeal 

'^  Ellis  r.  Hull,  23  Oal.  160.  bond  is   not    liable  for    damages  as- 

' Diamond  v.  Petit,  3  La.  An.  37;  sessed  on  dismissing  the  api;eal,  see 

Holmes  v.  Steamer  Belle  Air,  5  La.  Raney  v.  Baron,  Admr.    1  Fla.   827. 

An.  523.  Sureties  for  the  payment  of  a  judg- 

*  Jenkins    v.     Skillem,     5    Yerger  ment  are  not  discharged  by  the  fact 

(Tenn.)  288.  that  the  judgment  is  appealed  from, 

^Anderson  v.  Sloan,  1  Colorado,  484.  and  other  sureties  given  for  the  ap- 

Holding  that  sureties  who  sign  an  ap-  peal;  Smith  r.  Falconer,  11  Hun,  (N. 

■  peal   bond  are  liable,  although  their  Y.)  481. 
names  do  not  appear  in  the  body  of  it; 


SURETIES    ON    FORTHCOMING    BONDS.  543 

ness  is  it  to  tliem  if  it  did  belong  to  a  tliird  person?  He  alone 
could  complain  that  liis  property  liad  been  taken  to  pay  the  debt 
of"  the  principal.^  A  steamer  was  seqnestered  and  released  on 
bond,  which  provided  that  the  property  should  be  returned  or  the 
judgment  satisfied.  In  an  action  on  the  bond  the  sureties  plead- 
ed that  subsequent  to  tlie  sequestration  the  steamer  had  been 
seized  and  sold  by  another  creditor,  and  the  proceeds,  with  the 
knowledge  of  the  plaintiff,  had  been  paid  into  court,  and  distri- 
buted among  the  creditors.  Held,  these  facts  constituted  no  de- 
fense.^ Certain  property  was  sequestered  by  a  vendor,  who 
claimed  a  lien  on  it,  and  a  sequestration  bond  for  its  release  was 
given,  which  was  conditioned  for  the  production  of  tlie  property 
to  answer  the  judgment.  The  property  was  at  that  time  subject 
to  a  lien  for  rent,  and  afterwards  became  subject  to  a  further  lieu 
for  rent.  It  was  sold  for  these  liens,  and  was  not  forthcoming  to 
answer  the  judgment  in  the  sequestration  proceeding.  Held,  the 
sureties  on  the  sequestration  bond  were  liable  for  its  non-produc- 
tion.^ The  death  of  a  slave  for  which  a  delivery  bond  is  given, 
will  exonerate  the  surety  when  the  bond  is  not  otherwise  forfeit- 
ed." A  forthcoming  bond,  which  is  not  good  as  a  statutory  obli- 
gation, may,  if  it  violates  no  statute  and  does  not  contravene 
public  policy,  be  good  as  a  common  law  bond.^ 

§  406.  Miscellaneous  cases  concerning  sureties  on  forthcom- 
ing bonds. — The  obligation  of  a  bond  for  the  forthcoming  of 
property  seized  on  execution,  is.  only  that  the  property  shall  be 
delivered  to  the  officer  at  the  time  designated,  and  not  that  the 
execution  shall  be  satisfied;  and,  therefore,  if  a  surety  on  a  forth- 
coming bond,  before  it  is  forfeited,  discharges  the  execution  by 
paying  it  without  the  i-equest  of  the  principal,  such  surety  can- 

^  Gray  r.  MacLean,  17  111.  404,  per  stances  against  the  sureties,  and  two 

Caton,  J.;  Syme  v.  Montague,  4  Hen.  out  of  five  judges  dissented,  holding 

&  Munf.  (Va.)  180;  Jemison  v.  Cozens,  that  as  the  goods  were  sold  for  a  prior 

3  Ala.   636;  contra.   Long  r.  United  lien,    the    sureties    were    discharged. 

States  Bank,    1    Freeman's    Ch.    R.  Holding  that  the  liability  of  a  surety 

(Miss.)  375.     See,  also,  on  this  subject,  on  a  sequestration  bond  is  only  for  such 

Elliott  V.  Gray,  4  Stew.  &  Port.  (Ala.)  expenses  as  are  incident  to  the  seques- 

168.  tration  and  release;  see  Norton  v.  Cam- 

^  Gordon  v.  Succession  of  Diggs,  9  mack,  10  La.  An.  10. 

La.  An.  422.  ^  Laughlin  v.  Ferguson,  6  Dana  (Ky.) 

^Clapp  r.  Seibrecht,  11  La.  An.  528.  111. 

The  majority  of  the  court  relied  con-  ^  Johnson  v.  Weatherwax,  9  Kansas, 

siderably  upon  some  equitable  circum-  75. 


T) 4i   OBLIGATIONS  GIVEN  IX  COURSE  OF  ADMINISTEATION  OF  JUSTICE. 

not  maintain  an  action  against  tlie  principal  for  money  expended 
for  the  latters  nse,  tliongli  by  payment  of  the  execntion  the  bond 
was  satisfied.  The  principal  may  have  intended  to  contest  the 
validity  of  the  execution  or  levy.^  When  a  judgment  is  obtain- 
ed against  a  principal  and  his  sureties,  and  property  of  the  prin- 
cipal is  levied  on  for  its  discharge,  a  third  person  who  becomes 
surety  in  a  bond  for  the  forthcoming  of  the  property,  and  is 
obliged  to  pay  the  debt  because  of  the  non-production'  of  tlie 
property,  cannot  recover  contribution  from  the  original  sureties. 
They  are  not  sureties  in  the  same  transaction ;  their  interests  are 
dissimilar,  and  they  are  not  co-sureties.^  Where  two  separate 
suits  were  brought,  one  against  the  maker  and  the  other  against 
the  indorser  of  a  promissory  note,  and  judgments  were  had,  and 
forthcomino:  bonds  were  o-iven  in  each  case,  the  bond  in  the  case 
against  the  maker  havine'  been  ffiven  and  forfeited  before  that  in 
the  suit  against  the  surety,  it  was  held  that  the  forfeiture  of  the 
bond  given  by  the  maker  did  not  operate  as  a  satisfaction  of  tlie 
judgment  against  the  surety,  inasmuch  as  the  judgments  were 
separate  and  in  separate  suits ;  but  the  court  said  it  would  have 
been  otherwise  if  there  had  been  a  joint  judgment  against  both.' 
Judgment  was  recovered  against  A,  B  and  C,  who  were  all  prin- 
cipal debtors,  and  execution  was  levied  on  property  of  A,  wlio 
gave  a  forthcoming  bond  therefor,  with  D  as  surety,  which  bond 
was  forfeited  and  execution  was  issued  against  D.  Held,  the 
original  debt  was  not  extinguished  by  the  levy,  and  giving  the 
forthcoming  bond.  By  signing  the  bond,  D  became  a  surety  for 
the  original  debt,  and  if  he  paid  it,  might  recover  indemnity  from 
B  and  C,  but  he  could  not  recover  from  them  the  costs  of  the 
forthcoming  bond.  He  would  also  be  entitled  to  subrogation 
to  all  the  rights  of  the  creditor  against  B  and  C*  Sureties 
in  a  sequestration  bond  have  been  held  to  be  proper  parties 
defendant  to  a  suit  to  recover  damages  for  wrongfully  suing  out 
the  writ.' 

§  407.      Liability  of  surety   on   bond  given  to  dissolve  attach- 
ment ^Arhen   defendants   changed   or    judgment  got  against   only 

'Gray  v.   Bowls,  1   Dev.   &    Batt.  ■*  Robinson  v.  Sherman,     2   Gratt. 

Law  (Nor.  Car.)  437.  (Va.)  178. 

==  Dunlap  r.  Foster,  7  Ala.  7.34.  ^Tompkins    v.  Toland,    46  Texas, 

^McNutt  V.    Wilcox,    3    Howard  584. 
(Miss.)  417. 


BOND   GIVEN   TO    DISSOLVE   ATTACHMENT.  545 

part  of  defendants. — The  surety  in  a  bond  given  to  dissolve  an 
attachment  is  discharged,  if  the  plaintiff  afterwards  discontinues 
as  to  one  of  the  defendants,  and  brings  in  a  new  defendant  with- 
out notice  to  the  surety,  although  the  defendant,  as  to  whom  the 
action  was  discontinued,  was  not  a  party  to  the  bond.  The  court 
said:  "The  bond  declared  on  is  conditioned  for  the  payment  of 
the  judgment  which  the  plaintiff  should  recover  in  the  original 
action.  The  judgment  actually  rendered  was  against  a  new 
party,  and  is  entirely  different  from  any  which  the  surety  had  in 
view  when  he  signed  the  bond."  '  The  condition  of  a  bond  dis- 
solving an  attachment,  was  that  if  the  defendants  A,  B  and  C 
"  shall  pay  to  the  plaintiff  in  said  action  the  amount,  if  any, 
which  he  shall  recover  therein  within  thirty  days  after  the  final 
judgment  in  said  action,  then,"  etc.  Judgment  was  recovered 
against  A  and  B  only.  Pleld,  the  surety  in  the  bond  was  liable 
therefor.  The  court  said  it  did  not  appear  in  the  case  whose 
property  was  attached,  but  the  condition  of  the  bond  was  to  pay 
whatever  judgment  should  be  rendered  in  the  case.^  In  another 
case  certain  property  was  attached  at  the  suit  of  three  persons. 
Certain  parties,  to  procure  the  release  of  the  attached  property, 
gave  a  bond  conditioned:  "  That  if  the  obligors  should  well  and 
truly  pay  any  judgment  which  might  be  recovered  by  the  said 
""  (plaintiff)  in  the  suit  commenced  by  the  writ  of  attach- 
ment within  sixty  daj^s  after  the  judgment  was  recovered,"  then 
the  obligation  to  be  void.  The  plaintiff  dismissed  the  suit  as  to 
two  of  the  parties,  and  recovered  judgment  against  the  third. 
Held,  the  sureties  on  the  bond  were  not  liable  therefor.  The 
court  said  that  the  bond  when  executed  tacitly  refers  to  the  suit 
as  it  then  is.  "The  sureties  on  entering  into  the  contract  meas- 
ure the  risk  they  incur  by  the  chances  which  the  plaintiff  has  to 
recover  against  the  defendants  in  the  writ,  and  the  ability  of  the 
latter  in  case  of  defeat,  to  respond  to  the  plaintiff  or  the  sureties 
themselves  if  called  on."  The  change  in  the  parties  allowed  the 
creditor  to  recover  when  he  would  otherwise  have  been  defeated. 
The  sureties  would  have  to  look  for  indemnity  to  the  parties 

^Richards  v.  Stover,  114  Mass.  101,  ^Leonard  v.  Speidel,  104  Mass.  356. 

per  Ames,  C.  J.    To  similar  effect,  see      To  similer  effect,   see  Heynemaiin  v. 
Tucker  v.  White,  5  Allen,  322.    See,      Eder,  17  Cal.  433. 
also,  Quillen  v.   Arnold,   12  Nevada, 
234. 

35 


546    OBLIGATIONS  GIVEN  IN  COURSE  OF  ADMINISTRATION  OF  JUSTICE. 

against  wliom  the  judgment  was  recovered,  instead  of  all  the  de- 
fendants in  the  attachment  suit,  and  he  might  be  insolvent  and 
the  others  good.' 

§  408,  "When  judgment  against  principal  conclusive  against 
surety  on  bond  to  dissolve  attachment. — All  attachment  was 
levied  on  the  property  of  a  defendant,  and  a  bond  with  sureties  to 
dissolve  the  attachment  was  given.  Afterwards,  and  before  judg- 
ment, the  principal  was  adjudged  bankrupt,  and  the  creditor 
proved  his  claim  against  the  bankrupt's  estate.  Afterwards 
judgment  was  recovered  in  the  attachment  suit.  Held,  these 
facts  were  no  defense  to  the  surety  on  the  forthcoming  bond,  but 
should  have  been  made  use  of  to  defeat  the  attachment  suit. 
The  judgment  in  that  suit  was,  in  the  absence  of  fraud  or  collu- 
sion, conclusive  evidence  of  the  existence  of  the  debt  against  both 
principal  and  surety.''  Certain  goods  were  seized  on  attachment 
a,s  the  property  of  A.  Afterwards  B,  with  C  as  surety,  gave  a 
bond  for  the  goods,  by  which  they  agreed  to  satisfy  whatever 
judgment  might  be  rendered  in  the  suit.  Judgment  having  been 
rendered  for  the  plaintiff  in  the  suit,  it  was  held  that  the  surety 
in  the  bond  might  show  as  a  defense  that  the  property  levied  on 
was  not  the  property  of  A,  that  no  service  actual  or  constructive 
had  been  had  on  A,  and  that  consequently  the  judgment  was  a 
nullity.^  Certain  property  was  levied  on  by  attachment,  and 
sureties  signed  an  obligation  providing,  that  in  consideration  of 
the  release  of  the  property  levied  on,  the  obligors  would  pay 
whatever  judgment  might  be  rendered  in  the  attachment  suit. 
Judgment  was  recovered  by  the  plaintiff  in  the  attachment  suit, 
and  it  was  held  that  the  sureties  in  the  bond  were  liable  therefor, 
and  could  not  show  that  the  property  attached  was  not  subject  to 
attachment,  nor  that  the  writ  of  attachment  was  not  properly  is- 
sued. The  court  said:  "  It  does  not  rest  with  the  *  (sureties) 
to  say  that  the  property  attached,  if  any  was,  was  not  subject  to 
le\^^,  for  the  condition  is  to  answer  the  judgment;  and  no  collat- 

'  Andre  v.   Fitzliugh,   18  Mich.  93,  '^  Cutter  v.  Evans,  115  Mass.  27;  see, 

per  Graves,  J.     See,  also,  on  this  sub-  also,  on  this  subject,  Collins  v.  Mitch- 

ject,  Newell   v.  Norton,   3  Wallace,  ell,  5  Fla.  364. 

257.     Holding,  that  an  alteration  of  ^  Quine  v.  Mayers,  2  Robinson  (La.) 

the  attachment   writ  discharges  the  510. 
surety  on  such  a  bond,  see  Simeon  v. 
Cramm,  121  Mass.  492. 


BONDS  IN  ATTACHMENT  PEOCEEDINGS,  547 

eral  inquiry  can  be  made  as  to  the  fact  of  the  levy,  or  of  the 
propertj^  being  subject  to  it."  ' 

§  409.  How  surety  on  bond  to  dissolve  attachment  and  on 
appeal  bond  affected  by  bankruptcy  of  principal. — It  has  been 
held,  that  a  discharge  in  bankruptcy  is  a  bar  to  the  further  prose- 
cution of  a  suit  against  the  bankrupt,  commenced  by  attachment 
more  tlian  four  months  before  the  institution  of  the  bankruptcy 
proceedings,  if  the  attachment  was  dissolved  by  giving  a  bond 
with  surety  to  pay  whatever  judgment  might  be  recovered  in 
the  case,  notwithstanding  the  provisions  of  the  bankrupt  act,  pre- 
serving the  lien  of  an  attachment  made  four  months  or  more  be- 
fore the  commencement  of  bankruptcy  proceedings,  and  contin- 
uing the  liability  of  sureties  after  the  discharge  in  bankruptcy  of 
their  principal.  The  obligation  of  the  surety  on  such  a  bond  never, 
in  such  case,  becomes  complete,  because  no  judgment  is  rendered 
against  the  principal."  On  the  same  principle  it  has  been  held  that 
the  surety  on  appeal  bond  is  discharged  by  the  discharge  in  bank- 
ruptcy of  his  principal,  where  no  final  judgment  is,  for  that  rea- 
son, rendered  against  the  principal.  Such  a  surety  is  not  bound 
for  the  debt,  but  is  only  liable  in  case  of  the  rendition  of  a  judg- 
ment which  never  is  rendered.' 

§  410.  Miscellaneous  cases  concerning  sureties  on  bonds 
given  in  attachment  proceedings. — After  the  liability  of  the  sure- 
ties on  a  bond  given  to  dissolve  an  attachment  has  become  fixed, 
they  are  not  discharged,  by  tlie  fact  that  the  creditor  has  the  prin- 
cipal arrested  and  imprisoned  for  the  same  debt."  It  has  been 
held  that  the  surety  in  a  void  attachment  bond  is  not  liable  for 
the  wrongful  taking  of  the  property  by  the  sheriff,  where  he  has 
no  personal  share  in  such  taking,^  A  attached  the  goods  of  B, 
and  he  gave  bond,  with  0  as  surety,  for  the  forthcoming  of  the 
goods  to  answer  the  attachment.     Afterwards  A  and  B  agreed 

'  McMillan  v.  Dana,  18  Cal.  339.  Bankr.  Reg.  414;   In  re  Albrecht,  17 

2  Carpenter    v.   Turrell,    100    Mass.  Bank.  Reg.  287;  ZoUar  «;.  Janvrin,  49 

450;    Hamilton  v.  Bryant,  114  Mass.  New  Hamp.  114. 

543;  Braley  v.  Boomer,  116  Mass.  527;  "Odell  v.  Wootten,  38  Ga.  224;   /(/. 

In  re  Richter"s  Estate,  4  Bankr.  Reg.  4  Bankr.    Reg.    183;    Martin  v.    Ki- 

222;    Payne  v.   Able,    7  Bush.  (Ky.)  bourn,  1  Central  Law  Jour.  94  ;    but 

344.     To  contrary  effect,  see  Holyoke  see  Knapp  v.  Anderson.  7  Hun,  (N.Y.) 

V.  Adams,  1  Hun,  (N.  Y.)  223;  Id.  10  295  ;  Hall  v.  Fowler,  6  HiU  630. 

Bankr.  Reg.  270  ;   Affirmed,  Holyoke  *  Moore  v.  Loring,  106  Mass.  455. 

V.  Adams,  59  New  York,  233;  Id  13  '  McDonald  v.  Fett,  49  Cal.  354. 


54:8    OBLIGATIONS  GIVEN  IN  COUKSE  OF  ADMINISTRATION  OF  JUSTICE. 

amono-  themselves  that  the  debt  sued  for  was  just,  and  the  attach- 
ment should  be  sustained.  Held,  that  0  might  thereuj^on  inter- 
vene in  the  suit,  and  move  that  the  attachment  be  quashed,  and 
that  he  was  only  liable  for  the  forthcoming  of  the  property,  on 
condition  that  the  attachment  proceeding  was  legal  and  proper, 
and  the  property  levied  on  was  subject  to  attachment.  The  agree- 
ment between  A  and  B  did  not  bind  C.^  The  removal  of  a  cause 
from  a  state  to  a  United  States  Court,  in  accordance  with  the  act 
of  congress,  does  not  of  itself  alone  have  the  effect  to  render  a 
delivery  bond  for  property  seized  on  attachment  and  already  filed 
in  the  cause,  inoj)erative;  neither  does  such  removal  so  change  or 
enlarge  the  obligation  of  the  sureties  on  such  bond  as  to  discharge 
them.  But  where,  in  pursuance  of  an  order  of  the  state  court,  a 
new  forthcoming  bond  is  filed  in  the  United  States  Court,  and  the 
first  bond  is  delivered  up  to  the  sureties  therein,  and  by  them 
canceled,  such  sureties  are  discharged.^  A  bond  given  to  procure 
the  issuing  of  an  attachment,  provided  that  the  plaintiff  would 
pay  all  damages  which  the  defendant  might  sustain.  Held,  the 
sureties  on  such  bond  were  only  liable  to  pay  in  case  the  princi- 
pal did  not.  They  were  in  the  nature  of  guarantors,  and  "  a  de- 
mand on  the  principal  debtor,  and  a  failure  on  his  part  to  do  that 
which  he  is  bound  to  do,  are  requisite  to  found  any  claim  against 
the  guarantor."  ^ 

§  411.  Surety  on  injunction  bond  not  liable  for  judgment  if  it 
is  misdescribed.- — In  a  suit  against  a  surety  on  an  injunction  bond 
conditioned  for  the  payment  of  all  moneys  due,  or  to  become 
due,  upon  a  judgment  "  for  the  sum  of  $2,300  and  costs,"  in 
favor  of  the  obligee  and  against  the  principal,  in  case  the  injunc- 
tion should  be  dissolved,  it  was  held  that  the  plaintiff  could  not 
give  in  evidence  a  judgment  for  $2,346.06  and  costs,  although  in 
other  respects  it  answered  to  the  judgment  mentioned  in  the 
condition  of  the  bond.*  If,  however,  the  bond  contains  a  plain 
reference  to  the  bill  in  the  suit  in  which  the  injunction  is  issued, 
the  misdescription  of  the  judgment  in  the  bond  may  be  corrected 
by  the  bill,  and  the  surety  held  liable.^  Where  the  judgment 
recited  in  an  injunction  bond  was  stated  to  have  been  recovered 

'  Burch  V.  Watts,  37  Texas,  135.  "  Hall  v.  Williamson's  Admr.  9  Ohio 

*  Ramsey  v.  Coolbaugh,  13  Iowa,  164.  St.  17. 

^Pinney  v.  Hershfield,  1  Montana,  MVilliamson's  Admr.  t'.  Hall,  1  Ohio 

367,  per  Knowles,  J.  St.  190. 


SURETY   ON    INJUKCTION    BOND.  540 

at  the  April  term,  1801,  when  it  was  in  fact  recovered  at  the 
September  term,  1801,  it  was  held  the  surety  on  the  bond  was 
not  liable  therefor/ 

§  412.  Liability  of  surety  on  injunction  bond  for  judgment, 
for  damages,  for  interest,  etc. — An  injunction  bond  in  a  suit  to 
stay  a  judgment  at  law,  provided  for  the  payment  of  all  costs 
and  damages  in  case  the  injunction  should  be  dissolved.  The 
statute  provided  that  the  bond  in  such  case  should  be  conditioned 
for  the  payment  of  the  judgment  at  law.  Held,  the  sureties  in 
the  bond  were  only  bound  for  the  costs  and  damages  in  the  in- 
junction suit,  and  not  for  the  payment  of  the  judgment.^  The 
surety  in  an  injunction  bond  has  been  held  not  liable  for  dam- 
ages allowed  upon  the  affirmance  of  a  decree,  in  pursuance  of  a 
statute  passed  after  he  signed  the  bond.'  Where  an  injunction 
bond,  in  a  suit  to  stay  certain  judgments  at  law,  provided  for  the 
payment  of  "the  said  sums  of  money  in  said  judgments  speci- 
fied," and  the  amounts  of  the  judgments  were  specified,  it  was 
held  the  surety  on  the  bond  was  liable  for  interest  on  the  judg- 
ments.* A  having  procured  an  order  ^dissolving  an  injunction 
which  had  issued  in  favor  of  B,  the  latter  appealed  to  the  su- 
preme court  from  the  order,  which  appeal  the  supreme  court 
dismissed,  on  the  ground  that  an  appeal  did  not  lie  in  such  a 
case.  Held,  the  sureties  on  the  appeal  bond  were  not  liable  for 
the  damages  occasioned  by  the  issuing  of  the  injunction,  but 
only  for  the  costs  of  the  appeal.^ 

§  413.  Liability  of  surety  in  injunction  bond  if  complainant 
dismiss  his  bill  by  agreement  -with  defendant. — Certain  parties 
became  sureties  in  an  injunction  bond,  given  in  a  suit  to  stay  a 
judgment  at  law.  The  principal  in  the  injunction  suit  dismissed 
his  bill  by  agreement  with  the  owner  of  the  judgment.  Held, 
that  in  the  absence  of  fraud  and  collusion  by  the  principal  and  the 
creditor  to  charge  the  sureties,  the  mere  dismissing  the  injunction 
suit  by  consent,  did  not  discharge  the  sureties  on  the  injunction 
bond.  The  court  said  that  the  surety,  by  his  undertaking,  "  put 
himself  in  the  power  of  his  principal  so  far  as  the  prosecution  of 
the  bill  was  concerned.     He  knew  perfectly  well  that  the  com- 

'  Morgan   v.   Blackiston,  5  Harr.  <fe  ^ -^oQ^goQ  y_  Johns.   3  Munf.  (Va.) 

Johns.  (Md.)  61.  230. 

2  Ashby  V.  Tureman,  3  Littell  (Ky.)  *  Weatherby  v.  Shackleford,  37  Misa. 

6.  559. 

^Parham  v.  Cobb,  9  La.  An.  423. 


550    OBLIGATIONS  GIVEN  IN  C(*UKSE  OF  ADMINISTKATION  OF  JUSTICE. 

plaiiiant  had  power  at  any  time,  in  his  discretion,  to  dismiss  liis 
bill.  He  knew  the  court  conld  dismiss  it  for  reasons  showm,  and  he 
took  these  risks."  ^  Bnt  if  the  complainant  in  a  bill  upon  which  an 
injunction  has  been  granted,  is  corruj^tly  induced  by  the  defend- 
ant in  the  suit  to  dismiss  his  bill  for  the  purpose  of  charging  the 
sureties  on  the  injunction  bond,  thej  will  be  thereby  discharged.^ 

§  414.  Liability  of  surety  in  injunction  bond  when  one  only 
of  several  for  whom  he  is  liable  is  charged. — A  and  B  were  en- 
joined by  C,  who  gave  bond  with  D  as  surety,  conditioned  to  in- 
demnify A  and  B  against  all  such  costs  and  damages  as  should 
be  awarded  against  C  in  case  the  injunction  should  be  dissolved. 
It  was  dissolved  as  to  A,  but  not  as  to  B.  Held,  D  was  not 
liable  on  his  bond.  The  injunction  had  not  been  dissolved  so  as 
to  charge  him.^  It  has  been  held  that  the  undertaking  of  the 
surety  in  an  injunction  bond,  where  there  are  several  complain- 
ants, is,  in  law,  for  the  j)rincipals  severally  as  well  as  jointly,  and 
the  abatement,  therefore,  of  a  suit  in  equity  as  to  one  of  several 
joint  complainants  by  the  neglect  of  both  parties  to  revive  it,  or 
the  discharge  of  one  upon  some  ground  applicable  to  him  alone, 
does  not  affect  the  liability  of  the  surety  in  an  injunction  bond 
for  the  surviving  party  or  parties  against  whom  a  final  decree 
may  liave  been  properly  rendered.* 

^  415.  Miscellaneous  cases  concerning  sureties  in  injunction 
bonds. — A  single  complainant  filed  a  creditor's  bill  on  behalf  of 
himself  and  all  other  creditors  of  the  defendant,  who  should  come 
in  and  contribute  to  the  expenses  of  the  suit.  He  also  procured 
the  issuing  of  an  injunction  against  the  defendant,  to  prevent  him 
from  disposing  of  his  property,  giving  an  injunction  bond  with 
surety.  Afterwards  other  creditors  became  parties,  and  joined  in 
the  prosecution  of  the  case.  Held,  the  surety  in  the  injunction 
bond  was  not  discharged  by  the  addition  of  the  new  parties.  The 
court  said  that  while  the  courts  will  not  extend  the  obligation  of 
a  surety,  "  it  is  equally  settled  that  the  intention  of  the  parties 
when  the  bond  was  executed,  is  to  guide  in  its  construction,  and 
to  arrive  at  this,  the  nature  of  the  contract,  the  purposes  to  be  ac- 
complished by  it,  and  the  character  of  the  proceedings  of  which 
it  forms  a  part,  will  be  regarded."     In  this  case  the  bond  was 

1  Boynton  v.  Phelps,  52  111.  210,  per  « Ovington  v.  Smith,  78  111.  250. 

Breese,  C.  J.  <  Kelly  v.  Gordon,  3  Head  (Tenn.) 

■^  Boynton  v.  Robb,  22  111.  525.  683. 


SURETY    ON    EEPLEVIN   BOND.  551 

given  as  a  necessary  step  to  procure  tlie  injunction.  "  The  con- 
dition of  the  bond  was  co-extensive  with  the  objects  and  purposes 
of  the  bill,  and  the  admission  of  new  parties  did  not  enlarge 
the  responsibility  of  the  obligors."  Moreover,  it  was  contem- 
plated when  the  bond  was  executed  that  new  parties  would  come 
in.^  A  principal  debtor  in  a  judgment  obtains  an  injunction 
against  the  enforcement  of  the  same,  and  executes  an  injunction 
bond,  with  a  third  person  as  suretj-,  an  original  surety  for  the 
debt  not  being  a  party  to  the  injunction  proceedings.  Upon  a 
dissolution  of  the  injunction,  the  surety  in  the  injunction  bond 
is  liable  for  the  debt  enjoined  before  the  original  surety.^  The 
surety  in  an  injunction  bond  given  in  a  suit  to  stay  a  judgment 
at  law,  cannot  in  the  absence  of  fraud  inquire  into  the  merits  of 
the  judgment  against  his  principal."  It  is  no  defense  to  the  sure- 
ties on  an  injunction  bond,  that  the  principal  is  solvent  and  able 
to  pay.*  If  the  word  "  dollars  "  is  left  out  of  an  injunction  bond 
M'here  it  should  occur,  it  has,  notwithstanding,  been  held  that  the 
sureties  in  the  bond  are  liable  thereon.^ 

§  416.  ■When  surety  in  replevin  bond  discharged  by  reference 
of  replevin  suit  to  arbitrators. — The  condition  of  a  replevin  bond 
was  that  the  plaintiff  in  replevin  should  "appear  at  the  next 
county  court  and  jjrosecute  his  suit  with  effect  and  without  delay 

*  and  make  return  *  if  return  thereof"  should  be  ad- 
judged. The  plaintiff  and  defendant  in  the  replevin  suit  referred 
the  cause  to  an  arbitrator,  and  agreed  without  the  privity  of  the 
sureties  that  the  replevin  bond  should  stand  as  security  for  the 
performance  of  the  award.  Held,  the  sureties  in  the  replevin 
bond  were  discharged  on  the  ground  that  time  had  been  given 
the  principal.®  It  has  been  held  that  where  the  matters  in  issue 
in  a  replevin  suit  are  referred  to  arbitrators  unconditionally,  it 
operates  to  discontinue  the  suit  and  discharges  the  sureties  in  the 
replevin  bond,  but  when  the  submission  provides  that  the  award 

'Levy  r.  Taylor,   24  Md.  282,   per  1  Moore  &  Payne,  285;  Bowmaker  ». 

Weisel,  J.  Moore,   3    Price,   214;   Bowmaker   v. 

^  Bently  v.  Harris's  Admr.    2  Gratt.  Moore,  7  Price,  223.  Contra,  Moore  v. 

{Va.)357.  Bowmaker,  2  Marshall  81;  Moore  v. 

"    ^McBroom  tJ.   Sommerville,  2  Stew.  Bowmaker,  2  Marshall  392;  Moore  r. 

(Ala.)  015.  Bowmaker,   6  Taunt.   379.     Holding 

*  Hunt  V.  Burton,  18  Ark.  188.  that  in   such  case  the  surety  is  dis- 

^  Harman  v.  Howe,  27  Gratt.  (Va.)  charged  in  equity,  but  not   at  law; 

676.  see  Aldridge  v.  Harper,  10  Bingham, 

^Archer?;.  Hale,  4 Bingham,  464;  7c?.  118. 


553    OBLIGATIOXS  GIVEN  IN  COUESE  OF  ADMINISTRATION  OF  JUSTICE. 

shall  have  the  same  effect  as  the  verdict  of  a  jiiiy,  and  that  judg- 
ment may  be  entered  thereon,  then  the  facts  show  that  it  was  not 
intended  that  the  suit  should  be  discontinued,  and  it  is  the  same 
as  if  the  ]>art\^  had  confessed  judgment  and  neither  the  party  nor 
liis  surety  is  discharged  thereby.  ISTo  time  is  given  by  such  lat- 
ter submission  to  arbitration,  because  neither  party  is  bound  by 
it.^  Where  a  statute  provided  that  auy  pending  suit  might  be 
referred  to  arbitrators,  and  the  plaintiff  and  defendant  in  a  re- 
])levin  suit  referred  it  to  arbitrators,  with  the  agreement  that  their 
award  should  be  entered  as  the  judgment  of  the  court,  and  an 
award  for  $240  was  rendered  in  favor  of  the  defendant  in  replev- 
in, which  was  entered  as  the  judgment  of  the  court,  it  was  held, 
the  surety  in  the  replevin  bond  was  not  liable  therefor.  The 
surety  undertook  that  the  princiiDal  would  prosecute  his  suit  with 
effect,  and  this  had  reference  "  to  its  prosecution  in  court  before 
the  court,  and  not  privately  before  arbitrators."  ^  Where  the 
plaintiff  and  defendant  in  a  replevin  suit  referred  it  and  all  mat- 
ters in  controversy  between  them  to  arbitration,  and  the  arbitrators 
rendered  an  award  in  favor  of  the  defendant  in  replevin,  it  was 
held  thfit  the  surety  in  the  replevin  bond  was  discharged  by  the 
reference  to  arbitration.^ 

§  417.  "When  surety  in  replevin  bond  bound  for  money  judg- 
ment against  his  principal.— A  party  replevied  certain  pro])erty, 
and  gave  a  bond  to  return  the  property  if  a  return  should  be 
awarded,  and  also  to  pay  all  costs  and  damages  that  might  be 
awarded  as^ainst  him.  Juds^ment  was  rendered  airainst  him  in 
the  replevin  suit  for  the  value  of  the  property.  Held,  the  judg- 
ment was  erroneous,  but  not  void.  It  might  have  been  reversed, 
but  was  not,  and  it  bound  the  principal.  The  surety  in  the  re- 
plevin bond  was  also  bound,  because  the  bond  was  conditioned 
for  the  payment  of  all  costs  and  damages  which  might  be  award- 
ed against  the  principal.^  Property  seized  under  a  distress  for 
rent  was  replevied  by  the  tenant.  The  plaintiff  in  the  distress 
proceeding  went  on  and  got  a  personal  judgment  against  the 
tenant,  but  did  not  get  any  judgment  perfecting  the  lien  on  the 
property  distrained.       Held,    the  surety  in   the    replevin  bond 

'  Perigo,  G.  M.  &  T.  Co.  v.  Grimes,  ^  Bnrke  v.  Glover  21  Up.  Can.  Q.  B. 

2  Colorado,  651.  R.  294. 

*Pirkins  v.  Rudolph,  36  111.  306,  per  *  Mason  v.  Richards,    12  Iowa,  73. 

Breese,  J.  To  contrary  effect,    Ladd  v.   Brewer, 

17  Kansas,   204. 


SUEETY  ON  REPLEVIN  BOND.  553 

was  not  liable  to  tlie  plaintiff  in  the  distress  proceeding.  He  was 
only  bound  for  tbe  return  of  the  property,  and  as  the  plaintiff  in 
the  distress  proceeding  had  lost  his  claim  on  the  distrained  prop- 
erty, the  surety  was  not  liable.^ 

§  418.  Whether  surety  in  replevin  bond  liable  if  defendant 
in  replevin  suit  changed,  etc. — It  has  been  held  that  where  the 
owner  of  personal  property  in  a  proper  case,  and  where  it  can 
be  done  without  injury  to  the  rights  of  the  adversary  party,  is 
by  order  of  the  court  substituted  as  defendant  in  an  action  of 
replevin  in  place  of  the  agent  of  the  owner  against  whom  the  ac- 
tion was  brought,  the  sureties  in  the  replevin  bond  are  not  there- 
by discharged,  but  are  liable  to  indemnify  the  new  party  the 
same  as  if  he  had  been  the  original  and  only  defendant.'^  It  has 
also  been  held  that  the  surety  in  a  replevin  bond  is  discharged,  if 
by  consent  of  parties  a  third  person  is  substituted  for  the  original 
defendant.^  The  surety  in  a  replevin  bond  is  not  discharged  be- 
cause the  replevin  suit  is  transferred  from  one  court  to  another, 
in  pursuance  of  a  statute  in  force  when  he  became  bound.*  The 
same  thing  was  held  with  reference  to  a  surety  on  a  bond  for 
costs.  ^ 

§  419.  Surety  in  replevin  bond  not  liable  when  return  of 
property  rendered  impossible  by  act  of  law. — A  levied  an  attach- 
ment on  certain  property,  and  B  replevied  it  from  the  sheriff*. 
The  same  property  was  afterwards  seized  by  the  sheriff  on  anoth- 
er and  subsequent  attachment.  B  was  defeated  in  the  replevin 
suit,  and  a  return  of  the  property  was  ordered.  Held,  the  sure- 
ties in  the  replevin  bond  were  not  liable.  The  proceedings  in 
replevin  did  not  impair  the  lien  of  the  first  attachment,  but  only 
gave  a  right  to  the  temporary  possession  of  the  property.  When 
the  property  came  to  the  hands  of  the  sheriff  on  the  second  at- 
tachment, the  condition  of  the  replevin  bond  was  falfilled,  and 
the  property  was  in  the  sheriff's  hands  to  answer  the  first  attach- 
ment, which  was  a  first  lien.  As  the  property  was  taken  from 
the  sureties  by  process  of  law,  over  which  they  had  no  control, 
they  were  discharged.^     The  surety  in  a  replevin  bond  for  slaves 

1  Toland  v.  Swearingen,  39  Texas,  ^  Reusch  v.  Demass,  34  Mich.  95. 

447.  5  Broyles  v.   Blair,  7  Yerg.  (Tenn.) 

^  Hanna  v.  International  Petroleum  279. 

Co.  '23  Ohio  St.  62-2.  « Caldwell  v.  Cans,  1  Montana,  570. 

3  Smith  t^.  Roby,   6  Heisk.  (Tenn.) 
546. 


55i   OBLIGATIONS  GIVEN  IN  COURSE  OF  ADMINISTRATION  OF  JUSTICE. 

is  exonerated  from  all  obligation  to  return  the  slaves  if  thej  are 
emancipated  by  act  of  the  law.^ 

§  420.  Miscellaneous  cases  concerning  sureties  in  replevin 
bond. — Where  logs  which  A  had  contracted  to  deliver  to  B  at  a 
certain  time,  were  seized  before  that  time  in  a  replevin  suit 
brouo-ht  by  C,  and  B  became  the  surety  on  C's  bond  in  the  re- 
plevin suit,  it  was  held  that  the  delivery  of  the  logs  as  agreed  was 
prevented  by  the  act  of  B,  and  lie  could  not  claim  such  delivery 
from  A  until  the  replevin  suit  was  determined.^  Certain  sureties 
signed  a  replevin  bond,  which  provided  that  the  property  should 
be  delivered  to  the  defendant  in  replevin  if  return  should  be 
awarded  to  him.  The  defendant  in  replevin  did  not  claim  a  re- 
turn of  the  property  in  his  pleadings.*  The  jury  found  generally 
for  the  defendant  in  replevin,  and  the  court  rendered  a  judgment 
for  costs  against  the  plaintiff  in  replevin,  which  judgment  was 
paid.  Held,  this  was  a  full  satisfaction  of  the  replevin  bond,  and 
a  suit  for  the  value  of  the  propert}^  could  not  be  maintained 
against  the  sureties.^  Where,  in  an  action  of  replevin,  a  judg- 
ment for  the  return  of  the  property  has  been  entered,  an  action 
may  be  brought  against  the  sureties  in  the  replevin  bond  without 
a  demand  for  the  return  of  the  property.*  An  action  of  replevin 
was  brought  for  a  horse,  and  sureties  entered  into  an  undertaking 
to  deliver  the  horse  if  the  plaintiffs  should  recover.  The  plain- 
tiff did  recover  a  judgment  for  the  deliver}^-  of  the  horse  and  for 
damages,  and  w^ithout  issuing  execution  against  the  defendant  in 
replevin,  brought  suit  on  the  undertaking  of  the  sureties.  Held, 
the  suit  could  be  maintained.* 

§  421.  Liability  of  surety  on  stay  bond. — A  judgment  against 
a  principal  debtor  was  replevied  (stayed)  by  him,  and  paid  by  his 

^  Young'  V.  Pickens,  45  Miss.  553.  ble,  altliougli  bis  name  is  not  contained. 

^Ketclium  v.  Zeilsdorff,  26  Wis.  514,  in  the  body  of  it,  see  Clarke  v.  Bell,  2 

^  Chambers  v.  Waters,  7  Cal.  SQO.J  Littell  (Ky.)  164.     Holding-  that  sure- 

*  Lomme  v.   Sweeney,    1   Montana,  ties  in  a  replevin  bond  are  not  dis- 

584.  charged  because  they  are  excepted  to, 

^  Nickerson  v.  Chatterton,  7  Cal.  56S.  and  do  not  justify,  see  Decker  v.  An- 

Holding  that  when  a  statute  requires  derson,  39  Barb.    (N.  Y.)   346.     See, 

two  sureties  on  a  replevin  bond,  and  also,  Crawford  v.  Collins,  45  Barb.  (N. 

the  name  of  one  of  two  apparent  sure-  Y.)  269.     Holding  that  the  release  of 

ties  to  such  a  bond  is  forged,  the  other  the  principal  in  a  replevin  bond  dis- 

Ls  liable,   see  Bigelow  v.  Comegys,  5  charges  the  surety  therein,  Greenlee  v. 

Ohio  St.  256.     Holding  that  where  a  Lowing,  35  Mich.  63. 

surety  signs  a  replevin  bond,  he  is  lia- 


SUKETY   FOK   COSTS.  655 

sureties  in  the  replevin  bond:  Held,  a  surety  for  tlie  original 
debt  was  not  responsible  to  the  sureties  in  the  replevin  bond.^ 
In  order  to  dissolve  an  attachment,  A  became  surety  that  the 
judgment  should  be  paid.  Judgment  was  recovered  and  execu- 
tion issued,  and  the  defendant  replevied  (stayed)  the  execution, 
giving  a  replevin  bond:  Held,  that  replevying  the  execution  ex- 
tinguished the  judgment  and  discharged  A.^  Consent  by  a  sure- 
ty in  a  replevin  (stay)  bond,  that  an  execution  then  in  the  hands 
of  the  sheriif  on  the  replevin  bond  may  be  stayed  for  any  period 
of  time  which  the  plaintiff  may  direct,  does  not  have  the  effect  of 
waiving  the  bar  of  the  statute  of  limitations,  j)roviding  that  if 
execution  is  not  issued  within  one  year,  the  surety  shall  be  dis- 
charged.^ Where  a  judgment  has  been  rendered  for  too  much, 
and  it  is  stayed  by  the  principal  and  a  surety,  entering  into  a  stay 
bond,  and  afterwards  by  agreement  of  the  creditor  in  one  instance, 
and  by  the  court  (it  not  appearing  whether  the  creditor  agreed  or 
not)  in  another  instance,  the  judgment  stayed  was  modified  so  as  to 
allow  junior  liens  to  take  precedence  of  the  jucfgment;  the  surety 
on  the  stay  bond  was  held  to  be  released  ji^re*  tanto.  The  judg- 
ment was  no  longer  the  one  which  the  surety  agreed  to  stay.* 

§  422.  Liability  of  surety  for  costs — Special  instances. — A 
certiorari  bond  was  conditioned  for  the  j)ayment  of  "  all  such 
costs  and  damages  as  may  be  awarded-  by  the  court  on  failure  to 
prosecute,"  and  concluded:  "We  agree  to  pay  all  costs  aforesaid, 
on  failure  aforesaid."  Held,  the  sureties  were  only  liable  for  the 
costs,  and  not  for  the  amount  of  the  recovery.^  A  party  entered 
into  a  recognizance  in  a  court  below  as  surety,  which  provided 
that  the  phiintiif  should  prosecute  his  suit  with  eftect,  and  answer 
all  damages  in  case  he  should  not  make  his  suit  good.  Before 
the  suit  was  terminated  the  plaintiff  died,  and  judgment  was  af- 
terwards rendered  in  the  case  against  the  plaintiff  for  costs. 
Held,  the  surety  w^as  not  liable  for  the  costs  made  before  the 
plaintiff's  death,  nor  for  any  costs.  ISTo  costs  could  be  legally 
adjudged  against  the  plaintijff,  because  he  died  before  the  termi- 

1  Hammock  t'.  Baker,  3  Bush  (Ky.)  ^^Ic^wX^j  v.   OlTutt,    12  B.   Mon. 
208.     To  same  effect,  with  reference      (Ky.)  38G. 

to  sureties  in  first  and  second  replevin  *  Middletou  v.  First  Natl.  Bank  of 

bond  for  same    debt,    see  Brooks  v.  Marshalltown,  40  Iowa,  29. 

Shepherd,  4  Bibb  (Ky.)  572.  ^  Maxwell  v.  Salts,  4  Cold.  (Tenn.) 

2  Gray  v.   Merrill,     11   Bush  (Ky.)  233. 


556    OBLIGATIONS  GIVEN  IN  COUKSE  OF  ADMINISTKATION  OF  JUSTICE. 

nation  of  the  suit,  and  if  the  principal  was  liable  for  no  costs, 
the  surety  was  liable  for  none.^ 

§  423.  Surety  iu  indemnifying  bond  to  sheriff  liable  with 
sheriff  in  trespass. — On  an  execution  against  A,  property  of  B 
M-as  levied  on.  The  slieriff  refused  to  sell  without  a  bond  of  in- 
demnity, and  C  signed  such  a  bond  and  the  property  was  sold. 
Held,  that  C  w^as  jointly  liable  in  trespass  to  B  w^ith  the  plaintiff 
in  the  execution.  The  court  said:  "The  indemnitors  were  the 
causa  caiisans  inducing  and  requesting  the  sheriff  to  do  the  un- 
lawful act.  Their  indemnity  naturally  produced  the  act  of  the 
wrongful  sale,  and  must  be  regarded  as  the  principal,  if  not  the 
sole,  cause  of  it.  All  persons  who  direct  or  request  another  to 
commit  a  trespass,  are  liable  as  co-trespassers.  The  bonds  of  in- 
demnity in  this  case  were  a  virtual  request  to  the  sheriff  to  sell 
the  safe." ""  But  it  has  been  held  that  the  surety  in  a  void  attach- 
ment bond,  who  had  no  personal  share  in  taking  the  property,  is 
not  liable  in  trespass  for  the  taking  thereof.^ 

§  424.  Bliscellaueous  cases  concerning  sureties  on  bonds 
given  in  the  course  of  the  administration  of  justice. — Where 
a  comjDlainant  in  chancery  obtained  the  appointment  of  a  receiver 
to  take  charge  of  the  property  in  controversy,  and  executed  a 
bond  conditioned  to  pay  "  all  damages  and  costs  which  may  be 
awarded  "  to  respondents  by  reason  of  the  wrongful  appointment 
of  such  receiver,  it  Avas  held  that  it  was  not  necessary  before  bring- 
ing suit  on  the  bond,  that  the  plaintiff  should  have  his  damages 
awarded  him,  either  at  the  time  of  the  determination  of  the  orig- 
inal suit,  or  by  the  institution  of  a  suit  against  the  principal 
alone,*  The  surety  for  the  appearance  of  a  party  attached  for 
contempt  of  court  is  discharged  if  the  ^proceedings  against  the 
principal  are  discontinued,  even  though  they  are  subsequently 
revived.^  A  prosecution  bond  was  given  with  surety,  which  was 
objected  to  by  the  defendant  in  the  suit,  and  a  new  bond  with 
another  surety  was  given.  Held,  this  did  not  discharge  the 
surety  in  the  first  bond.  The  second  bond  was  supplemental  to 
the  first,  and  the  sureties  on  both  were  liable." 

1  Parsons  v.  Williams,  9  Ct.  236.  "  Thayer  r.  Hurlburfc,  5  Iowa  (Clarke) 

'  Herring  v.  Hoppock,  .15  New  York,  521. 

409,  per  Paige,  J.;  Screws  v.  Watson,  'Lamonte  v.  Ward,  36  Wis.  558. 

48  Ala.  628.  «Baie  v.  Wooten,  7  Jones  Law  (Nor. 

2 McDonald  v.  Fett,  49  Cal.  354.  Car.)  441. 


CHAPTEE    XX. 


OF  BAIL. 


Section. 

Bail  in  civil  cases  generally  enti- 
tled to  the  rights  of  a  surety 

Discharge  of  bail  by  surrender  of 
principal 

Right  of  bail  to  arrest  principal 

When  sickness  or  death  of  princi- 
pal excuses  bail 

Exoneration  of  bail  by  act  for 
which  he  is  bound  being  render- 
ed unlawful        .... 

How  liability  of  bail  aft'ected  by 
enlistment  of  principal  in  the 
army 

How  liability  of  bail  affected  by 
subsequent  imi:)risonment  of 
principal    ..... 

When  bail  liable  if  accused  ap- 
pear and  afterwards  escape 

How  liability  of  bail  affected  by 
term  of  court  not  being  held, 
change  of  venue,  etc.  Bail  in 
bastardy  bond    .... 

When  bail  liable   though  princi- 


425 

426 
427 

428 


429 


430 


431 


432 


433 


pal  not   liable  to  arrest 
ress  of  principal,  etc. 

Liability  of  bail  when  principal  in- 
dicted for  another  offense, 
amendment  of  declaration, 
change  of  form  of  action    . 

Bail  may  defend  suit  against  prin- 
cipal. Approval  of  bond  need 
not  be  indorsed  thereon.  Par- 
don of  principal.     Other  cases 

Bail  in  civil  case  not  discharged 
by  issuing  oi  fi.fa.  first  against 
principal.  Other  cases  concern- 
ing ca.  sa.  .... 

Miscellaneous  cases  holding  bail 
discharged         .        .        .        . 

When  failure  to  indict  principal 
does  not  discharge  bail.  Justi- 
fication of  bail.  Other  cases 
holding  bail  liable 

Miscellaneous  cases  holding  bail 
liable 

Bail  entitled  to  indemnity    . 


Section. 
Du- 


434 


435 


436 


437 


438 


439 

440 
441 


§  425.  Bail  in  a  civil  case  generally  entitled  to  the  rights 
of  a  surety. — Bail  is  a  word  used  to  designate  tlie  person  or  per- 
sons who  become  responsible  for  the  future  apj^earance  of  an  in- 
dividual, and  thereby  procure  his  release  from  present  imprison- 
ment, 'No  general  discussion  of  the  subject  of  bail  will  l)e  here 
attempted.  Attention  will  be  directed  only  to  sucli  portion 
thereof  as  especially  concerns  the  subjects  treated  of  in  this  work. 
Though  nothing  passes  between  the  bail  and  the  creditor  in  a 
civil  case,  yet  such  bail  are  considered  by  act  and  operation  of 
law  as  sureties,  and  are  entitled  to  the  benefit  of  the  general 
l^rinciples  relative  to  sureties  as  applicable  to  them.'     Such  bail 

^Rathbone    v.   Warren,    10    Johns.       West  t?.  Ashdown,  1  Bingham,  164. 
587;  Campau  v.  Seeley  80  Mich.  57; 

(557) 


55S  BAIL. 

> 

are  generally  discharged  by  tlie  giving  of  time  to  the  principal, 
under  the  same  circumstances  that  sureties  directly  liable  for  the 
debt  would  be  discharged.'  Judgment  having  been  entered 
against  the  defendant  in  a  case  who  had  given  special  bail,  the 
creditor  afterwards,  without  the  consent  of  the  bail,  entered  into 
a  binding  agreement  that  he  would  not  issue  execution  against 
the  principal,  for  the  purpose  of  fixing  the  bail,  until  after  a  cer- 
tain day.  Held,  that  the  bail  was  thereby  discliarged,  as  he  was 
deprived  of  the  right  to  surrender  the  principal.'^  But  where  a 
defendant  was  arrested  on  mesne  process  and  gave  bail,  and  the 
plaintiff  before  judgment  was  rendered  covenanted  not  to  arrest 
him  on  any  writ  or  execution  within  four  months,  it  was  held 
that  the  bail  was  not  thereby  discharged,  because  tlie  agreement 
to  give  time  could  not  be  specifically  enforced;  the  bail  might  at 
any  time  have  arrested  the  principal,  and  no  judgment  could  have 
been  obtained  within  the  extended  period,  if  the  agreement  for 
extension  had  not  been  made.^  So,  where  the  plaintift',  during 
the  progress  of  a  cause,  agreed  to  give  the  defendant  a  month's 
time  to  pay  the  debt,  the  time  expiring  before  judgment  could, 
by  the  practice  of  the  court,  be  obtained,  and  final  judgment  not 
having  been  in  fact  signed  before  the  agreement  was  made,  it  was 
held  that  the  bail  was  not  thereby  discharged.^  It  has  been  held 
that  a  plaintiff  who,  having  sued  out  a  ca.  sa.  against  the  prin- 
cipal, ofiered  to  accept  a  composition,  and  gave  him  time  to  make 
terms  with  his  other  creditors,  did  not  thereby  (the  composition 
having  failed)  discharge  the  bail,  who  might  at  any  time  have  sur- 
rendered his  jDrincipal.'  It  has  also  been  held  that  a  temporary 
stay  of  execution,  entered  of  record  by  agreement  of  the  plaintiff, 
in  consideration  of  a  confession  of  judgment  by  the  principal, 
will  not  exonerate  the  special  bail  in  the  action.  The  stay  did 
not  suspend  the  right  of  the  bail  to  surrender  the  principal  at 
any  time.^  Bail  for  the  appearance  of  the  principal,  to  take  the 
benefit  of  the  insolvent  laws,  is  discharged  if  the  creditor  releases 

'Willison  V.  Whitaker,  7  Taunton,  ''Eathbone    v.   "Warren,   10  John-?. 

53;  Id.  2  Marshall,  383;  Croft  v.  John-  587. 

son,  5  Taunton,   319.     Holding  bail  ^  FuUam  v.  Valentine,  11  Pick.  156. 

discharged  by  taking  new  bond  for  ^Whitfield  v.   Hodges,    1   Mees.  & 

extended  time  under  peculiar  circum-  Wels.  679;  Id.  2  Gale,  127. 

stances,    see    Crutcher    v.    Common-  ^  Brickwood  v.  Anniss,  5  Taunton, 

wealth,  6  Wharton  (Pa.)  340.  614. 

« Johnson  v.  Boyer,  3  Watts  (Pa.)  376. 


SUEEENDEE   OF    PEINCIPAL.  559 

the  principal  from  imprisonment  under  a  second  execution.^  If 
bail  lias  been  discharged  by  the  giving  of  time,  and  afterwards 
agrees  to  continue  liable  without  knowledge  of  the  facts,  such 
agreement  does  not  bind  him,  and  he  is  discliarged." 

§  426.  Discharge  of  bail  by  surrender  of  principal. — As  the 
undertaking  of  bail  is  that  the  principal  shall  appear  at  a  certain 
time  and  place,  the  obligation  is  fulfilled  if  the  principal  does  ap- 
pear and  comply  with  the  terms  of  the  undertaking.  Bail  in 
both  civil  and  criminal  cases  may  however  be  discharged  by  a 
surrender  of  the  j^rincipal  to  thepro23er  authorities  before  the  day 
stipulated  for  the  appearance  of  the  principal.  This  surrender 
may  be  made  by  the  principal  himself,^  by  the  bail,^  or  by  an  ad- 
ministrator of  the  bail,'  and  the  bail  will  be  thereby  discharged, 
even  tliough  he  is  indemnified.®  "Where  three  persons  became 
bail  in  a  criminal  case,  and  tw^o  of  thein  surrendered  the  princi- 
pal and  were  discharged,  and.  the  principal  afterwards  escaped, 
it  was  held  the  third  person  who  had  become  liable  as  bail, 
was  discharged  by  the  surrender  of  the  principal  by  the  other 
tw^o,  and  was  not  liable  for  anything  happening  afterwards.^ 
Where  a  ca.  sa.  was  returned  by  the  sheriff"  non  est  inventus 
before  the  return  day  thereof,  and  the  bail  afterwards,  and  before 
the  return  day,  offered  to  surrender  tlie  principal  to  the  sheriff",  it 
was  held  that  this  discharged  the  bail.  The  court  said  the  bail 
had  a  right  to  a  reasonable  time  to  surrender  the  principal,  and 
that  time  was  the  lifetime  of  the  execution.*  But  bail  in  a  crim- 
inal case  are  not  discharged  by  a  surrender  of  the  principal  to 
a  deputy  sheriff",  because  "the  surrender  of  the  principal  in 
such  a  case  must  be  to  some  officer  who  may  commit  the 
principal  to  jail  or  admit  him  to  bail,  but  the  deputy  sheriff 
can  do  neither."  '  It  has  been  held  that  the  bail  in  a  civil  case 
cannot  prove  by  parol  that  he  surrendered  his  principal  during 
the  session  of  a  previous  term  of  the  court,  upon  the  ground  that 
the  proceedings  of  a  court  while  in  session  can  only  be  known  by 
its  record,  and  that  an  exoneretur  should  have  been  entered  of 

'  Paletliorpe  v.  Lesher,  2  Rawle  (Pa.)  *  Browiielow  ??.  Forbes,  2  Johns.  101 ; 

272.  see,  also,  Mitchell  v.  Commonwealth, 

2  West  V.  Ashdown,  1  Bingham,  164.  12  Bush  (Ky.)  247. 

^Dick  V.   Stoker,  1  Devereux  Law  'State  t'.  Doyal,  12La.  An.  653. 

(Nor.  Car.)  91.  « Edwards  v.  Gunn,  3  Ct.  316. 

4  Harp  V.  Osgood,  2  Hill  (N.Y.)  216.  «  State  v.  LeC"erf,  1  Bailey  Law  (So. 

^Wheeler  v.  Wheeler,  7  Mass.  109.  Car.)  410  per  Richardson,  J. 


560  BAIL. 

record.'  A  party  was  arrested  on  a  ca.  sa.,  and  gave  bail  for  liis 
aj)pearance  at  the  next  term  of  the  inferior  conrt,  to  be  held  on 
the  second  Monday  of  the  next  July,  to  take  the  benefit  of  an  act 
concerning  insolvent  debtors.  The  next  term  of  the  conrt  was 
held  on  the  first  Monday  of  July,  and  the  bond  was  then  de- 
clared forfeited.  Tlie  principal  appeared  on  the  second  Monday 
of  July,  according  to  the  condition  of  the  bond,  and  it  was  held 
the  bail  was  thereby  discharged.''  A  bail  bond  in  a  criminal  case 
was  forfeited  because  of  the  non-appearance  of  the  accused,  and  a 
judgment  was  rendered  against  the  bail.  Subsequently  the  ac- 
cused was  arrested,  tried  and  found  guilty;  but  was  granted  a 
new  trial,  and  released  on  new  bail.  A  statute  provided  that 
forfeited  bail  might  be  relieved  by  the  appearance,  trial,  convic- 
tion and  punishment  of  the  accused:  Held,  the  original  bail  was 
not  entitled  to  a  discharge,  because  the  accused  had  not  been  con 
victed  and  punished.^ 

§  427.  Right  of  bail  to  arrest  principal. — The  principal  is  pre 
sumed  to  be  at  all  times  in  the  custody  of  his  bail,  and  the  bail 
has  at  all  times  the  right  to  arrest  him  and  surrender  him  unto 
the  custody  of  the  law.  Bail  may  arrest  the  principal  without 
warrant,  as  the  right  to  arrest  does  not  depend  npon  a  warrant, 
but  results  from  the  nature  of  the  undertaking  of  bail,  and  he 
may,  in  such  case  at  common  law,  command  the  assistance  of  the 
sheriff.*  Bail  may  dej)ute  another  to  arrest  and  surrender  the 
princij^al.^  The  deputy  so  appointed  cannot  ap23oint  a  deputy, 
but  may  employ  assistants  who  must  act  in  his  presence."  As 
bail  is  supposed  to  be  at  all  times  and  places  with  the  principal, 
and  the  principal  is  at  all  times  and  places  supposed  to  be  in  the 
custody  of  his  bail,  the  bail  in  a  civil  case  may,  after  demanding 
admission,  break  open  the  outer  door  of  the  dwelling  house  of  the 
principal  to  take  him.'  So  bail  in  a  civil  case  may  by  himself  or 
by  his  agent,  arrest  the  princij^al  in  another  state  than  that  in 
which  the  bail  bond  is  given.  In  holding  this  it  has  been  said 
that:  "  By  the  common  law,  the  bail  has  the  custody  of  the  prin- 
cipal and  may  take  him  at  any  time  and  in  an}^  place.     *     The 

'Griffin  v.  Moore,  2 Kelly  (Ga.)  331.  ^Nicholls  r.  Ingersoll,  7  Johns,  146. 

'Roberts  r.  Green,  31  Ga.  421.  « State    v.   Mahon,    3    Hamngton, 

2  Johns  V.  Race,  18  La.  An.  105.  (Del.)  568. 

*  State  V.  Cunningham,  10  La.  An.  '  NicoUs  v.  Ingersoll,  7  Johns,  146. 
393. 


SICKNESS    OK   DEATH    OF   PRINCIPAL.  561 

taking  is  not  considered  as  the  service  of  process,  but  as  a  con- 
tinuation of  the  custody  which  had  been,  at  the  request  of  the 
principal,  committed  to  the  bail.  The  principal  may,  therefore, 
be  taken  on  Sunday.  The  dwelling  is  no  longer  the  castle  of  the 
principal,  in  which  he  may  place  himself  to  keep  off  the  bail.  If 
the  door  shall  not  be  opened  on  demand  at  midnight,  the  bail 
may  break  it  do^yn,  and  take  the  principal  from  his  bed,  if  that 
measure  should  be  necessary  to  enable  the  bail  to  take  the  prin- 
cipal. *  The  obligation  which  the  principal  entered  into,  to  the 
bail  (viz.  to  be  always  at  his  command)  was  not  discharged  by 
stepping  across  the  line  of  his  state."  *  The  same  thing  was  held, 
where  imprisonment  for  debt  was  abolished  by  the  state  in  which 
the  principal  was  arrested,  after  his  arrest,  and  before  his  applica- 
tion for  discharge.''  But  where  the  defendant  gave  bail  in  a  civil 
suit  and  went  to  another  state,  and  was  there  arrested,  it  M'as  held 
that  the  bail  could  not  take  him  from  the  custody  of  the  sheriff 
in  the  latter  state.^  Bail  in  a  civil  suit  has  the  right  to  arrest  his 
principal  and  surrender  him,  even  though  no  ca.  sa.  has  been  is- 
sued on  the  judgment  recovered  against  the  principal,  and  tl^e 
creditor  has  died  since  the  recovery  of  the  judgment,  and  was 
.dead  when  the  bail  arrested  the  principal."  After  the  forfeiture 
of  a  recognizance  in  a  criminal  case  has  been  entered  of  record, 
it  has  been  held,  that  the  bail  has  no  right  to  surrender  the  prin- 
cipal, and  consequently  has  no  right  to  arrest  and  detain  him 
for  that  purpose.^ 

§  428.  When  sickness  or  death  of  principal  excuses  bail. — 
As  a  general  rule,  bail,  both  in  civil  and  criminal  cases,  will  be 
discharged  by  the  death  of  the  principal  at  any  time  when  his 
surrender  would  have  discharged  the  bail.  The  death  of  the 
principal  is  the  act  of  God,  by  which  the  bail  should  not  be 
prejudiced."  Where  the  bail  is  fixed,  so  that  the  surrender  of  the 
principal  would  not  avail  him,  he  will  not  be  discharged  by  the 

^  Commonwealth  v.  Brickett,  8  Pick.  ^  Commonwealth      v.    Johnson,     3 

138,  per  Putnam,  J.;  Nicolls  v.  Inger-  Cush.  454. 

soil,  7  Johns,  146.  '•      ®  Wakefield    v.    McKinnell,    9  La. 

"^Ex   parte    Lafonta,    2    Robinson  (Curry)  449;  State  v.   Cone,    32  Ga. 

(La.)  495.  663;  Griffin  v.  Moore,  2  Kelly  (Ga.) 

^Respublica  v.  Gaoler  of  Philadel-  831;  Mather  p.  The  People,  12  111.9. 

phia,  2  Yeates  (Pa.)  263.  To  contrary  effect,  see  Hamilton   v. 

"  Parker  v.  Bidwell,  3  Ct.  84.  Dunklee,  1  New  Hamp.  172. 

36 


562  BAIL. 

dcatli  of  the  principal.'  The  principal  in  a  prison -bounds  bond, 
who  by  its  terms  was  bound  to  file  his  schedule  within  forty  days, 
was  taken  sick  about  ten  days  before  the  expiration  of  the  forty 
days,  and  continued  sick  till  after  the  expiration  of  that  period, 
and  then  died  without  filing  a  schedule.  The  court  said:  "  The 
general  presumption  of  law  should  be  that  whilst  there  is  life 
there  is  capacity  to  attend  to  the  duties  of  legal  obligation.  The 
onus  must  always  be  on  the  defendant,  to  make  such  a  showing 
as  to  exonerate  him  on  account  of  illness.  It  must  be  an  actual 
illness  that  suspends  the  capacity  to  perform  legal  duties,  or  it 
must  be  such  as  would  obviously  put  one's  life  in  jeopardy,  by 
an  attempt  to  perform  a  particular  act."  In  such  case  the  bail 
may  be  excused,  on  the  ground  that  the  act  of  God  prevented 
performance,  and  if  such  was  the  case  the  bail  was  discharged.'' 
It  has  been  held  to  be  a  good  defense  to  a  suit  against  bail  for  the 
appearance  of  a  fraudulent  debtor,  that  the  debtor  had  been 
stricken  down  by  sickness  at  a  distance  from  the  place  of  hearing, 
so  as  to  prevent  his  appearing  at  the  time  fixed,  and  that  he  ap- 
peared there  as  soon  after  his  recovery  as  he  was  able  to  do  so. 
'fhe  court  said  that  where  the  contract  is  a  voluntary  one  between 
parties,  it  is  no  excuse  that  an  accident  has  prevented  its  fulfill- 
ment. But  in  the  case  of  statutory  bonds  and  obligations  it  is 
difi'erent,  and  in  the  latter  case,  when  the  act  to  be  performed  is 
of  a  purely  personal  character,  which  can  only  be  done  by  the 
party  himself,  the  act  of  God  in  producing  sickness  or  insanit}^, 
as  well  as  death,  will  excuse  performance.^ 

^  429.  Exoneration  of  bail  by  act  for  v/hich  he  is  bound 
being  rendered  unlawful. — If  the  act  for  the  performance  of 
which  bail  becomes  responsible  is  afterwards  rendered  illegal  or 
impossible  by  the  law  making  power,  the  bail  will  be  thereby 
excused.  Thus,  if  after  bail  in  a  civil  case  has  signed,  and  before 
he  is  fixed,  imprisonment  for  debt  is  abolished  by  the  legislature, 
he  will  no  longer  be  bound.  When  the  imprisonment  is  no 
longer  lawful,  it  would  not  be  lawful  for  the  bail  to  arrest  his 
principal  for  the  purpose  of  surrendering  him.*     Where  a  master 

'  Olcott  V.  Lilly,  4  Johns.  407;    The  *  Kelly  v.  Henderson,  1  Pa  St.  495; 

State  V.  Scott,  20  Iowa,  63.  White  v.  Blake,  22  Wend.  612;  Frey 

^Blackwell  v.  Wilson,  2  Richardson  v.  Hebenstreit,   1   Robinson  (La.)  561; 

Law  (So.  Car.)  322,  per  Butler,  J.  Brown  v.  Dillahunty,  4  Smedes  &  Mar. 

*  Scully  V.  Kii-kpatrick,  79  Pa.    St.  (Miss.)  713;     Parker    v.  SterUng-,   10 

324.  Ohio,  357. 


ENLISTMENT    OF    PRINCIPAL   IN   THE   AEMY.  563 

became  bail  for  the  appearance  of  bis  slave  to  answer  a  criminal 
charge,  and  before  the  forfeiture  of  the  bond  slavery  was  abol- 
ished, it  was  held  that  the  bail  was  thereby  discharged.  "When 
the  master  became  bound  he  had  absolute  control  of  the  slave  by 
virtue  of  his  ownership.  He  was  deprived  of  all  control  of  the 
slave  by  the  abolition  of  slavery,  as  the  slave  was  not  bound  by 
the  recognizance,  being  absolutely  incapable  of  entering  into  a 
contract  when  a  slave/  The  defendant  was  arrested  in  Dela- 
ware for  a  debt  contracted  in  Pennsylvania  with  a  citizen  of  jSTew 
Jersey^  and  gave  special  bail.  After  giving  the  bail  he  was 
finally  discharged  under  the  insolvent  laws  of  Maryland,  of  which 
State  he  was  a  resident.  A  motion  was  made  to  exonerate  the 
bail  on  account  of  this  discharge.  It  was  conceded  that  in  the 
absence  of  comity  the  insolvent  laws  of  a  State  could  have  no 
effect  beyond  its  own  borders,  but  it  was  contended  that  such 
comity  existed  between  Delaware  and  Maryland.  The  Court 
discharged  the  bail  without  giving  any  reasons.^ 

§  430.  How  liability  of  bail  affected  by  enlistment  of  prin- 
cipal in  the  army. — If  the  principal,  after  bail  becomes  bound, 
voluntarily  enlists  in  the  army,  and  in  consequence  cannot  be 
produced,  this  will  not  excuse  the  bail,'  The  defendant  in  a  civil 
action  gave  bail,  and  afterwards  enlisted  in  the  service  of  the 
United  States.  An  act  of  congress  provided  that  during  the  term 
of  service  of  such  a  person,  he  should  be  exempt  from  arrest  for 
debt.  Held,  the  bail  was  not  excused.  The  court  said:  "  To  ad- 
mit that  a  principal,  by  a  voluntary  assumption  of  a  duty  or 
office  which  may  exempt  him  from  arrest,  may  defeat  this  con- 
tract, or  enable  his  surety  to  do  it,  without  the  consent  of  the 
party  interested,  would  be  to  violate  the  common  principles  of 
justice,  as  well  as  the  faith  of  engagements.  The  bail  repose 
confidence  in  the  debtor,  the  creditor  does  not."  The  cases  where 
bail  have  been  discharged  by  a  change  in  the  state  of  their  prin- 
cipal, are  all  where  tlie  change  has  been  involuntary."  If,  however, 
the  principal  is  drafted  into  the  military  service  of  the  state,  and 

'  Lewis  V.  The  State,  41  Miss.  686;  =  estate  v.  Reaney,  13  Md.  230;  State 

State  V.  Berry,  84  Oa.  546.  v.  Scott,  20  Iowa,  63. 

2  Kennedy  v.  Adams,  5  Harrington  ^Harrington  v.  Dennie,  13 Mass.  93; 

(Del.)  160.     On  same  subject,  see  Bai-      per  Parker,  C.  J. 
ley  V.  Seals,   1  Harrinston  (Del.)  367; 
Beeson  v.  Beeson's  Admr.  1   Harring- 
ton (Del.)  466. 


564  BAIL. 

his  surrender  thereby  becomes  impossible,  his  bail  will  be  ex- 
cused.'    It  has  also  been  held  that  bail  was  discharged  where  his 
principal  was  taken  from  his  presumed  custody  by  a  United  States 
Provost  Marshal,  and  his  surrender  thereby  rendered  impossible. 
The  court  said:  "The  history  of  that  period  attests  the  omnipo- 
tence of  a  provost  marshal  in  his  district,  and  when  the  princi- 
pal in  a  bail  bond  was  arrested  by  the  order  of  that  officer,  an 
effort  on  the  part  of  his  surety  to  take  him  into  his  custody 
would  be  not  only  unavailing,  but  might  be  perilous   to  him- 
self." '     Where  a  party  was  in  jail  for  a  criminal  offense,  and 
another  voluntarily  became  his  bail,  and  took  him  to  another 
county  for  the  purpose,  as  a  matter  of  speculation,  of  putting 
him  into  the  army  as  a  substitute,  and  an  officer  of  the  United 
States  took  the  principal  from  the  bail,  as  a  deserter,  it  was  held 
that  the  bail  was  not  thereby  discharged.^     A  soldier  in  the  ser- 
vice of  the  United  States,  who  has  committed  a  criminal  offense, 
and  been  surrendered  to  the  state  authorities,  and  given  bail  for 
his  appearance,  and  has  then  voluntarily  returned  to  the  army  in 
another  state,  does  not  by  such  act  release  his  bail.*     Where  the 
principal  in  a  criminal  case,  after  giving  bail,  enlisted  in  the 
army  of  the  United  States,  and  was  out  of  the  state,  and  on  ac- 
count of  the  rules  of  the  army,  could  not  be  arrested  and  pro- 
duced by  the  bail,  and  was  also  sick  in  another  state,  it  was  held 
that  these  facts  were  a  sufficient  ground  for  the  continuance  of  a 
case  against  the  bail  for  the  non-production  of  the  principal.^ 

§  431.  How  liability  of  bail  affected  by  subsequent  imprison- 
ment of  principal. — With  reference  to  the  effect  upon  the  liabitity 
of  bail,  which  is  produced  by  the  subsequent  imprisonment  of 
the  principal  in  the  same  or  another  state,  upon  the  same  oi 
another  charge,  there  is  some  conflict  of  authority.  It  has  been 
lield  that  bail  in  a  civil  suit  is  discharged,  if  the  principal  is 
afterwards  convicted  of  a  crime  and  imprisoned  in  the  same 
state,  as  the  bail  is  in  such  case  prevented  from  performing  his 
obligation  by  the  act  of  the  law.'  It  has  also  been  held  that  bail  in 
a  prison-bounds   bond  is  discharged   if  the  principal  is  arrested 


'  Alford  r.  Irwin,  34  Ga.  25.  «Canby   v.    Griffin,    3     Han-ington 

^  Commonwealth  V.  Webster,  1  Bush  (Del.)  333;    Way  r.  Wright,   5    Met. 

(Ky.)  616,  per  Peters,  C.  J.  (Mass.)  380;  contra,  where  the  impris- 

^  Shook  V.  The  People,  39  111.  443.  onment  is  only  for  a  short  time,  Phoe- 

"Huggins  V.  The  People,  39  111.  241.  nix  Fire  Ins.  Co.  v.  Mowatt,   6  Cow. 

'  Gingrich  v.  The  People,  34  111.  448.  599. 


SUBSEQUENT   IMPRISONMENT    OF   PKINCIPAL.  565 

on  a  charge  of  felony  and  committed  to  close  confinement.'  So 
the  bail  in  a  prison-bonnds  bond  is  discharged  if  the  principal 
afterwards  becomes  insane,  and  is  by  the  proper  anthorities  com- 
mitted to  a  lunatic  asylum.'  Where  a  party  was  arrested  for 
crime,  and  gave  bail  in  one  state  and  w^as  afterwards  by  the 
authorities  of  that  state  surrendered  to  the  anthorities  of  anothey 
state  on  a  charge  of  murder,  in  which  latter  state  he  was  im- 
prisoned, when  he  should  have  been  surrendered  by  his  bail,  it 
was  held  that  the  bail  was  discharged,  because  the  state  by  its 
own  act  had  rendered  it  impossible  for  the  bail  to  surrender  the 
princijjal.^  A  party  gave  bail  in  Connecticut  to  answer  a  crim- 
inal charge.  He  was  afterwards  arrested  in  l^ew  York  on  a 
requisition  from  the  Governor  of  Maine,  and  was  imprisoned  in 
Maine  when  he  should  have  appeared  in  Connecticut,  It 
was  contended  that  as  the  principal  was  surrendered  by 
virtue  of  a  clause  in  the  constitution  of  the  United  States, 
providing  for  the  extradition  of  fugitives,  and  as  Con- 
necticut was  a  party  to  the  constitution  and  the  obligee 
in  the  bond,  the  sureties  were  discharged  by  the  act  of  the 
obligee,  but  it  was  held  that  the  bail  was  liable.  The  court  said 
that  the  several  states  as  to  such  matters  were  as  foreign  to  each 
other  as  independent  states.  The  "  act  of  the  law  "  which  will  dis- 
charge bail  must  be  the  act  of  the  law  of  the  state  in  which  the  obli- 
gation is  given.  The  principal  might  have  gone  to  Maine  on  pur- 
pose to  be  arrested  for  some  small  offense  if  such  a  discharge 
should  be  allowed,  and  such  collusion  could  never  be  proved. 
Imprisonment  of  the  principal  in  a  foreign  state  is  no  defense  to 
his  bail.  "  We  should  hesitate  long  .before  we  should  hold  that 
the  common  law  goes  thus  far  to  excuse  bail,  even  if  cases  could 
be  found  where  the  doctrine  contended  for  has  been  upheld. 
But  we  think  the  weight  of  decided  cases  is  in  accordance  with 
the  view  we  have  taken  of  the  phrase  '  by  the  act  of  the  law.' "  * 
A  principal  having  given  bail  that  he  would  on  a  certain  'day 
appear  to  take  the  benefit  of  the  insolvent  laws,  was  before  that 
day  sent  to  the  penitentiary  in  the  same  state  for  crime.  Held, 
the  bail  was  not  discharged.     The  court  said  the  bond  was  not  in 

>  Bradford  v.   Consaulus.  3  Cowen,  principal  is  by  proper  authority  con- 

128.  fined  elsewhere,  see  Belding  v.  State, 

''  Fuller  V.  Davis,  1  Gray,  612.  25  Ark.  315. 

3  State  r.  AUen,  2  Humph.  (Tenn.)  *  Taintor  t'.  Taylor,  36  Ct.  242,  per 

258.     Holding  bail  discharged  if  the  Park,  J. 


566  BAIL. 

the  nature  of  a  bail  bond,  but  of  a  bond  to  secure  the  perfonn- 
ance  of  a  certain  act.  "The  act  of  law,  however,  which  ex- 
cuses, is  that  which  subsequently  obliges  the  party  to  do  or  omit 
a  certain  thing,  leaving  him  no  option.  It  was  not  the  law 
which  compelled  the  commission  of  the  offense  in  this  instance; 
on  the  contrary,  it  forbade  it."  *  Bail  in  a  criminal  case  is  gen- 
erally discharged  if  the  principal  is  again  arrested  on  the  same 
charo-e,  during  the  time  he  is  in  custody;  by  virtue  of  the  second 
arrest  he  is  taken  from  the  control  of  the  bail.'*  So,  bail  in  a 
civil  case  is  discharged  by  a  commitment  of  the  principal  on  an 
alias  ca.  sa.,  although  a  scire  facias  commenced  after  a  return  of 
non  est  inventus  is  pending  at  the  time  of  such  commitment.^ 
The  sureties  in  a  ne  exeat  regno  bond  occupy  the  same  position 
as  bail  at  common  law,  and  where  the  defendant  in  a  writ  of  ne 
exeat  regno  has  been  proceeded  against,  and  committed  to  jail  for 
not  complying  with  a  final  decree  of  the  court  in  the  same  case, 
and  afterwards  escapes  from  custody,  his  sureties  are  discharged." 
§  432.  "When  bail  liable  if  accused  appear  and  after-wards 
escape. — Where  the  bail  bond  or  recognizance  in  a  criminal  case 
provides  that  the  accused  shall  appear  and  not  depart  without 
leave  of  the  court,  the  bail  is  not  usually  discharged  by  the  mere 
fact  that  the  accused  appears  and  is  put  upon  trial,  unless  he 
is  formally  surrendered,  as  provided  by  law.*  This  was  held 
in  the  case  of  such  a  bond  where  the  accused  appeared,  was  tried 
and  found  guilty,  but  did  not  appear  to  be  sentenced."  Where  a 
bond  in  a  criminal  case  provided  that  the  accused  should  appear 
and  not  depart  without  leave,  and  he  did  appear  in  the  custody 
of  the  bail,  and  was  delivered  to  the  sheriff,  and  all  spectators, 
including  the  bail,  were,  by  the  court,  ordered  to  leave  the  court 
room,  and  did  so,  and  the  accused  escaped,  it  was  held  the  bail 
M-as  not  discharged.     The  accused  was  not  surrendered  in   the 

'Smiths.  Barker,  6  Watts  (Pa.)  508,  "joi^^gon  ^_  Clendenin,   5  Gill,  & 

per  Rogers  J.      See,    also,  State  v.  Johns.  (Md.)  463.     Holding',  that  if  a 

Frith,   14  La.  (Cui-ry)    191;    State  v.  debtor  is  arrested  and  discharged  in 

Burnhain,  44  Me.  278.  one  state  he  may  be  arrested  for  the 

■■'  Peacock  v.  The  State,  44  Texas  11;  same  debt  in  another  state,  see  Peck 

JVIedlin  v.   Commonwealth,    11   Bush  v.  Hozier,  14  Johns.  346. 

(Ky.)  605.  6Lee  v.  The  State,  51  Miss.  665. 

^WaiTen  v.  Gilmore,  11  Gush.  15.  ^Dennard   v.  The     State,   2  Kelly 

See,  also,  BeU  ».  Rawson,  30  Ga.  712;  (Ga.)  137;  State  v.   Norment,  12   La. 

Jlilner  r.  Green,  2  Johns.  Gas.  283.  (Curry)  511. 


APrEAKANCE    AND    ESCAPE   OF    PKIXCIPAL.  567 

manner  provided  bj  tlie  statute,  and  the  bail  was  bound  by  the 
terms  of  the  bond  that  the  accused  should  not  depart  without 
leave.^  In  another  case,  while  the  jury  were  out  deliberating, 
the  sheriff  was  informed  that  tlie  accused  was  armed  and  intended 
to  escape.  He  then  asked  the  accused  if  he  w^as  armed,  and  ])e- 
ing  answered  in  the  affirmative,  requested  him  to  surrender  his 
arms,  which  being  refused,  the  sheriif  called  for  aid,  and  a  struggle 
ensued,  during  which  the  accused  escaped:  Held,  the  bail  was  not 
discharged.  INJot  having  made  a  formal  surrender  of  the  accused 
as  the  statute  provided,  the  bail  was  liable  till  the  trial  was  over.^ 
A  party  indicted  for  felony  gave  bail  to  appear  at  the  next  term 
of  the  court,  "  and  not  depart  therefrom  without  leave."  He  ap- 
peared and  was  put  upon  his  trial,  and  the  court  ordered  iiim 
into  the  custody  of  the  sheriff.  Afterwards,  while  the  jury  were 
out,  he  escaped:  Held,  the  bail  was  discharged,  on  the  ground  that 
the  principal  had  been  taken  from  his  custody  and  placed  in  that 
of  the  law.'  A  party  Avas  arrested  on  a  criminal  charge  before  a 
justice,  and  gave  a  bail  bond  which  j)rovided  that  he  should  ap- 
pear "  and  not  depart  thence  without  leave  of  court."  He  was 
afterwards  indicted,  and  a  bench  warrant  for  his  arrest  was  issued, 
upon  wliich  he  was  arrested  and  held  in  the  custody  of  the  sheriff 
till  he  was  put  upon  trial,  during  the  progress  of  wliich  he  es- 
caped: Held,  the  bail  was  discharged.  While  the  accused  was 
in  the  lawful  custody  of  the  sheriff  the  bail  could  not  control  him.* 
A  statute  provided  that  "  during  the  trial  of  an  indictment  for 
felony  the  defendant  shall  be  kept  in  actual  custody."  A  defend- 
ant, charged  with  felony,  appeared  and  was  ])ut  upon  trial,  and 
during  the  trial  escaped.  His  bail  bond  provided  that  he  should 
surrender  himself  into  custody  to  answer  the  charge,  and  not  de- 
part without  leave  of  court:  Held,  the  bail  was  discharged.  The 
defendant  should  have  been  taken  into  custody  w^hen  the  trial 
commenced,  and*  the  bail  was  not  afterwards  liable.' 

§  4-33.  How  liability  of  bail  affected  by  term  of  court  not  be- 
ing held,  change  of  venue,  etc. — Bail  in  bastardy  bond. — A  rec- 
ognizance in  a  criminal  case  provided  tlvit  the  accused  should  ap- 

1  The  States.  Tie  man,  39  Iowa,  474.  *Smith    v.   Kitchens,   51   Ga.    158. 

2  State  V.  Martel,  o  Robinson  (La.)  Contra,  Commonwealth  v.  Branch,  1 
22.  Bush  (Ky.)  59. 

s  Commonwealth  v.  Coleman,  2  Met.  '"  Askins  v.  Commonwealth,  1    Du- 

(Ky.)382.  vall(Ky.)275. 


568  BAIL. 

pear  at  the  next  term  of  tlie  District  court  "  and  answer  said 
charo-e,  and  abide  the  orders  and  judgment  of  said  court,  and  not 
depart  witliout  leave  of  the  same."     The   accused   appeared  at 
said  term  of  court,  and  tlie  venue  was  changed  by  order  of  the 
court  to  another  county,  and  the  accused  did  not  appear  in  such 
other  county.     Held,  the  bail  was  liable  for  such  non-appearance.' 
It  has  been  held  that  a  failure  to  hold  the  term  of  court  at  which 
the  accused  in  a  criminal  case  is  required  to  appear,  does  not  dis- 
charge his  bail,  who  are  obliged  in  such  case  to  have  him  present 
when  tlie  court  is  held.^     Bail  for  the  appearance  of  a  party  at  a 
particular  term  of  court,  will  be  liable  though  no  proceedings 
were  had  against  the  principal  at  the  term  at  which  he  was  recog- 
nized to  appear,  where  an  order  was  made  at  that  term  continuing 
all  cases  not  disposed  of,  and  at  the  succeeding  term  the  principal 
failed  to  answer.^     A  party  arrested  in  a  bastardy  proceeding  gave 
bond  conditioned  for  his  appearance  to  answer  the  charge  "  and 
perform  the  judgment  of  the  court."     He  appeared,  and  judg- 
ment was  rendered  against  him  for  $25  a  year  for  seven  years. 
Held,  the  bail  could  not  discharge  himself  from  liability  for  this 
judgment  by  surrendering  the  body  of  the  principal."     Where  a 
party  charged  with  bastardy  gave  bond  for  his  appearance   "  to 
answer  the  charge,"  and  he  appeared  and  pleaded  not  guilty,  but 
was  not  surrendered  to  the  court  nor   taken   into   custody,  and 
pending  the  trial  escaped,  it  was  held  the  sureties  were  liable. 
"To  answer  the  charge  is  not  merely  to  plead  to  it;  but  it  is  to 
hold  himself  answerable  to  it  until  discharged  by  the  court,  or 
surrendered  to  its  custody."  *     A  recognizance  in  a  bastardy  case 
provided  that  the  principal  should  appear  at  the  next  term  of  the 
court,  and  not  depart  without  leave.     The  principal  did  appear, 
and  the  court  continued  the  case  till  the  next  term,  and  suffered 
him  to  depart.     Held,  the  bail  was  discharged,  as  the  principal 
had  appeared  and  departed  by  leave  of  the  court.^ 

§434.  "When  bail  bound  though  principal  not  liable  to  arrest 
— Duress  of  principal,  etc. — It  has  been  held  that  bail  in  a  crim- 
inal case  is  not  liable  where  the  charge  stated  in  the  bond  is  not 

'  The  State  v.  Brown,  16  Iowa,  314.  *  Commonwealth  v.  Douglas,  11  Bush 

^  Commonwealth  v.  Branch,  1   Bush  (Ky.)  607. 

(Ky.)  59;      The  State  v.  Brown,  16  ^  Win tersoUt).  Commonwealth,  1  Du- 

lowa,  314.  vail  (Ky.)  177,  per  Robertson,  J. 

3  State  V.  Plazencia,  6  Robinson  (La.)  « The  People  v.  Greene,  5  Hill  (N.Y.) 

417.  647. 


WHEN   PEINCIPAL   NOT   LIABLE   TO    AKKEST.  569 

such  as  will  warrant  any  criminal  jDrosecution.'  "Wliere  a  debtor 
was  arrested  in  a  civil  suit,  contrary  to  a  positive  provision  of 
law,  it  was  held  that  the  bail  given  by  him  to  procure  his  release 
was  not  bound,  on  the  ground  that  the  issuing  of  the  writ  was 
prohibited,  and  "  a  party  never  can  obtain  any  legal  benefit  by  a 
violation  of  law."  '  But  it  has  also  been  held  that  it  is  no  defense 
to  bail,  in  a  civil  suit,  that  the  principal  was  not  liable  to  arrest 
when  the  bail  bond  was  entered  into.  In  holding  this,  it  has  been 
said  that  "  The  bail  is  estopped  from  denying  that  his  principal 
was  liable  to  arrest.  It  is  conceded  by  entering  into  the  recog- 
nizance *  The  privilege  set  up  belongs  to  the  principal  alone; 
he  may  waive  it  if  he  cliooses;  and  *  we  are  bound  here  to 
assume  lie  did  so,  otherwise  he  would  have  applied  to  the  court  or 
a  judge  at  chambers  for  a  discliarge  instead  of  putting  in  bail. 
The  idea  of  duress  is  absurd,  as  special  bail  do  not  come  into  the 
cause  till  after  the  return  of  the  writ,  and  abundant  opportunity 
to  apply  for  the  discharge."  ^  So  it  has  been  held  that  bail  in  a 
civil  case  cannot  inquire  into  the  sufficiency  of  the  affidavit  to 
hold  to  bail,  nor  question  the  legality  of  the  order  requiring  bail.* 
It  has  been  held  that  the  bail  in  a  criminal  case,  who  are  strang- 
ers to  the  accused,  cannot  set  np  duress  of  the  principal  as  a  de- 
fense, on  the  ground  that,  "  although  the  j)rincipal  may  have  been 
constrained  to  execute  the  recognizance  by  means  of  the  duress, 
yet  tlie  sureties  were  under  no  such  restraint."  ^  Precisely  the 
opj)osite  doctrine  has  been  held  in  the  case  of  bail  in  a  civil  suit." 
It  has  been  held  that  a  bail  bond  in  a  civil  case,  which  contains  a 
condition  onerous  to  the  surety,  which  is  not  warranted  by  law, 
or  wliicli  omits  a  condition  required  by  law,  which  is  for  the  ben- 
efit of  the  surety,  is  absolutely  void.'  It  has  also  been  held  that 
bail  in  a  civil  case  is  only  bound  to  the  extent  required  by  law, 
no  matter  what  may  be  the  tenor  of  the  bond,  and  that  such  bail 

»  State  V.  Jones,  3  La.  An.  9.  •*  Lewis  v.   Brackenridge,  1  Blackf. 

« Staftbrd  v.   Low,   *20  111.    152,  per  (Ind).  112. 

Walker,  J. ;  Thornhill  v.  Christmas,  10  ^Plnmmer  v.  The  People,  16  111.  358, 

Roljinson  (La.)  5A9.    Holding  that  the  per  Caton,  J.;  Huggins  v.  The  People, 

bail  of  a  woman  who  was  exempt  from  39  111.  241. 

an-est  in  a  civil  case  is  not  liable,  see  ^Thompson  v.  Lockwood,  15  Johns. 

Thomas  v.   Stewart,   2  Pen.  &  Watts  256. 

(Pa.)  475.  'Tuckers.  Davis,  15  Ga.  573;  Loyd 

^Stever  v.   Somberger,    24  Wend.  v.  McTeer,  33  Ga.  37;   Alexanders. 

275,   per  Nelson,  C.   J. ;     Springfield  Bates,  33  Ga.  125. 
Manf.  Co.  v.  West,  1  Cush.  388. 


570  BAIL. 

may  be  relived  bv  surrendering  tlie  principal,  though  the  tenor 
of  the  bond  is  diHerent.'  It  has  been  held  that  a  voluntary  bond 
entered  into  by  principal,  and  bail  before  the  sheriff  requiring  the 
principal  to  appear  to  answer  a  criminal  charge,  bound  the  bail, 
although  the  sheriff  had  no  authority  to  take  such  a  bond."  But 
where  the  sheriff  of  one  county  had  the  defendant  in  a  civil  suit 
in  custod}',  on  a  cajyias  ad  respondendum  in  another  county,  and 
bail  vras  accepted  by  the  sheriff  in  the  last-named  county,  it  was 
held  that  the  sheriff  had  no  authority  to  do  any  act  out  of  his  own 
county,  and  that  the  bail  was  not  liable.' 

§  435.  Liability  of  bail  when  principal  indicted  for  another 
offense — Amendment  of  declaration — Change  of  form  of  action. 
— It  has  been  held  that  bail  is  liable  tor  the  appearance  of  tlie 
principal,  if  he  is  indicted  for  an  offense  of  a  higher  grade,  but 
which  includes  the  offense  described  in  the  obligation.*  When 
the  accused  was  held  to  answer  a  charge  of  grand  larceny,  and  ap- 
peared, but  was  indicted  for  burglary,  it  was  held,  in  the  absence 
of  any  showing  that  the  indictment  was  based  on  the  same 
transaction  as  the  charge  of  grand  larceny,  that  the  bail  was  not 
liable  for  the  further  appearance  of  the  accused  to  answer  the  in- 
dictment.* Bail  in  a  criminal  case  was  taken  in  pursuance  of  an 
order  of  court,  the  entry  on  the  minutes  requiring  bail  in  S700, 
but  the  bail  was  given  in  $7,000,  and  the  Judge  at  a  subsequent 
term  corrected  and  altered  the  minutes  to  87,000.  Held,  the  bail 
was  not  thereby  discharged. °  The  principal  in  a  civil  suit  gave 
bail  in  $1,000,  conditioned  that  he  would  appear  to  answer  an 
attachment.  After  the  bail  became  liable,  the  plaintiff  amended 
his  declaration  so  as  to  claim  $1,200,  instead  of  $600,  but  no 
other  change  was  made.  The  plaintiff  recovered  $1,200.  Held, 
the  bail  was  liable  to  the  extent  of  his  bond,  on  the  ground  that 
increasing  the  ad  damnum  was  a  statutory  riffht  which  the 
plaintiff  had,  to  which  the  bail  must  be  presumed  to  have  con- 
sented.^    Where,  after  bail  in  a  civil  suit  had  become  liable,  the 

1  Slocomb  r.  Robert,  16  La.  (Cuitv)  ^  xhe  State  v.  Brown,  16  Iowa,  314. 
1*^3.                                                               Holding  that  bail  in  a  criminal  case  is 

2  Park  V.  The  State,  4  Ga.  329.  not  liable  unless  the  accused  is  indict- 

*  Harris  v.  Simpson,  4  Littell  (Ky.)  ed  for  the  offense  charged,  see  People 
165.  V.  Sloper,  1  Cummms  (Idaho)  183. 

*  Stater.  Cunningham,  10  La.  An.  «  State  ;-.  Frith,  14  La  (Curry)  191. 
■393.  'New  Haven  Bank  r.  Miles,   5  Ct. 

587. 


BAIL    MAY   DEFEND    SUIT   AGAINST   PKINCIPAL.  671 

declaration  was  amended  so  as  to  embrace  a  new  demand,  but 
judgment  was  rendered  on  the  original  demand  onlj,  it  was  lield 
that  the  bail  was  only  liable  to  the  extent  of  the  original  de- 
mand, was  not  injured  by  the  amendment,  and  was  therefore  not 
discharged.^  But  wliere,  after  bail  in  a  civil  suit  had  been  given, 
the  oaL  damnum  was  increased  on  motion  of  the  plaintiff  and  bj 
leave  of  the  court,  it  was  held  that  the  bail  was  discharged,  on 
the  ground  that  this  was  a  material  alteration  of  the  contract  of 
the  bail.^  In  an  old  case,  the  principal  in  a  civil  suit  was  ar- 
rested in  one  county  on  an  original  writ  laid  in  tliat  county. 
Judgment  was  had  against  the  principal  in  another  county. 
Held,  the  bail  was  not  liable.^  An  action  of  debt  was  commenced, 
and  the  defendant  held  to  bail.  The  action  was  afterwards  chang- 
ed from  debt  to  case,  and  it  was  held  the  bail  was  thereby  dis- 
charged. The  court  said:  "The  bail  can  be  made  liable  in  no 
other  manner  than  they  have  stipulated  by  tlieir  bond.  In  this 
case  it  is  conditioned  to  be  void,  if  the  principal  appears  to 
answer  to  an  action  of  debt,  which  the  plaintilf  hath  instituted 
against  him,  but  a  diflFerent  action  from  this  is  afterwards  prose- 
cuted, consequently  the  condition  of  the  bond  is  not  broken."  * 

§  436.  Bail  may  defend  suit  against  principal — Approval  of 
bond  need  not  be  indorsed  thereon — Pardon  of  principal — Other 
cases. — Bail  in  a  civil  case  will  be  permitted  to  defend  the  suit 
agaihst  his  principal  upon  terms  which  are  equitable.^  "Where  a 
statute  provides  that  a  bail  bond  sliall  be  acce2:)ted  or  approved 
by  a  certain  person,  such  acceptance  or  approval  is  a  mental  op- 
eration, and  need  not  be  in  writing,  nor  indorsed  on  the  bond." 
The  pardon  of  the  principal  in  a  criminal  case  before  conviction, 
is  a  discharge  of  his  bail  if  such  pardon  is  accepted  by  liim,  oth- 
erwise not.'  Where,  upon  the  return  of  non  est  inventus,  on  a 
ca.  sa.  against  the  principal,  the  bail  gave  a  note  for  tlie  amount 
of  the  judgment,  which  was  afterwards  reversed  on  a  writ  of 
error,  it  was  held  that  as  the  bail  was  not  fixed,  and  the  judgment 

^Seeley    v.    Brown.    14  Pick.   177.  Eq.  (Nor.  Car.) 77;  Waples  r.  Derrick- 
Holding  that  bail  in  a  fcivil  suit  is  not  son,  1  Harrington  (Del.)  134. 
liable  for  costs  of  counts  added  to  ^Bonsai  v.   Harker,   2    Harrington 
declaration,    see  Taylor  r.  Wilkinson,  (Del.)  327;  Guthrie  v.  Morrison,  1  Har- 
1  Nevile  &  PeiTy,  629.  rington  (Del.)  368. 

*  Laiigley  v.  Adams,  40  Me.  125.  ^The  State  v.  Wright,  37  Iowa,  522; 
3  Yates  V.  Plaxton,  3  Levinz,  235.  People  v.  Penniman,  37  Cal.  271. 

*  Byan  v.  Bradley,   Taylor,    Law    &  '  Grubb  v.  Bullock,  44  Ga.  379. 


572  BAIL. 

was  reversed,  there  was  a  failure  of  the  consideration  of  the  note, 
and  the  bail  was  not  liable  thereon.'  A  party  convicted  of  crime 
gave  bail  for  his  appearance,  in  order  to  take  his  case  to  the  su- 
preme court,  where  the  judgment  was  reversed,  the  case  remand- 
ed, and  a  nolle  ])rosec[ui  entered  therein.  Held,  the  bail  was  not 
liable  for  the  appearance  of  the  j)rincipal  to  answer  a  subsequent 
indictment  in  the  same  matter.''  Bail  in  a  civil  suit  against  two 
defendants,  is  not  liable  where  a  judgment  is  entered  bj  agree- 
ment, against  only  one  of  tlie  defendants.'  A  recognizance  pro- 
viding for  the  aj^pearance  of  the  accused  before  the  "  circuit 
court,"  when  there  is  no  circuit  court,  but  a  "  district  court, " 
has  been  held  not  to  create  any  liability  against  the  bail,  and 
cannot  be  enforced.* 

§  437.  Bail  in  civil  case  not  discharged  by  issuing  of  fi. 
fa.  first  against  principal — Other  cases  concerning  ca.  sa. — Bail 
in  a  civil  suit  is  not  discharged  by  the  plaintiff  taking  out  a  fi. 
fa.  previous  to  issuing  a  ca.  sa.  With  reference  to  this  it  has 
been  said:  "What  objection  can  there  be  to  the  plaintiff's  pro- 
ceeding in  the  first  instance  against  the  property  of  the  defend- 
ant? If  the  bail  are  made  to  pay  the  debt  of  the  principal  they 
may  resort  to  the  property  of  their  princi])al,  and  is  it  not  to 
tlieir  advantage  that  this  should  be  done  in  the  first  instance?  * 
The  contract  is  not  altered  but  is  in  fact  pursued,  for  the  bail  are 
to  pay  on  the  failure  of  the  principal  to  do  so.  This  certainly 
implies  that  the  plaintiff  may  endeavor  to  make  him  do  so  before 
he  applies  to  the  securities,  and,  as  to  time,  there  cannot  be,  and 
therefore  there  is  not,  any  day  fixed  when  the  bail  are  to  be  called 
on." "  If  the  amount  indorsed  on  a  capias  ad  respondendum 
does  not  conform  to  the  amount  sworn  to  be  due,  the  bail  will 
be  discharged  on  motion. °  But  where  the  items  indorsed  on  such 
a  writ  were,  after  the  bail  became  liable,  changed  by  order  of  the 
court,  but  the  aggregate  remained  the  same,  it  was  held  the  bail 

'  Tappen  v.  Van  Wagenen,  3  Johns.  ^  Commonwealth  v.   Clay,    9  Phila. 

465.  (Pa.)  121. 

2  Lamp  V.  Smith,  56  Ga.  589.     Hold-  ^  Sherman  v.  The   State,  4  Kansas, 

ing  that  bail  in  a  civil  suit  is  dis-  570. 

charged  if  judgment  in  the  court  be-  «Ogier  v.   Higgins,  2  McCord  Law 

low  is  rendered  in  favor  of  the  princi-  (So.  Car.)  8  per  Colcock,  J.  ;    Aycock 

pal,  even  though  it  is  reversed  in  the  v.  Leitner,  29  Ga.  197. 

Supreme  Court,  see  Butler  v.  Bissel,  1  « Jennmgs  v.  Sledge,  3  Kelly,  (Ga.) 

Root  (Ct.)  102.  128. 


MISCELLANEOUS    CASES   HOLDING    BAIL    DISCHARGED.  573 

was  not  discharged.^  A  statute  provided  that  bail  in  a  civil  case 
should  not  be  liable  until  a  ca.  sa.  had  been  issued  on  final 
judgment  against  the  principal,  and  returned  not  found.  Held, 
the  sheriff  could  not,  bj  a  return  of  the  execution  non  est  in- 
ventus before  the  return  day,  charge  the  bail  before  that  j)eriod. 
The  execution,  in  order  to  charge  the  bail,  must  remain  in  the 
sheriff's  hands  till  the  return  day,^  A  statute  provided  that  bail 
in  a  civil  case  should  surrender  his  principal  within  ten  days 
after  judgment.  A  judgment  was  recovered  but  no  execution 
was  taken  out,  nor  was  the  principal  surrendered  within  ten  days. 
Afterwards  execution  was  taken  out,  and  within  ten  days  from 
that  time  the  principal  offered  to  surrender  himself.  Held,  this 
was  a  sufficient  compliance  with  the  statute  to  discharge  the  baih^ 
§  438.  Miscellaneous  cases  holding  bail  discharged. — Where 
a  joint  judgment  was  recovered  against  three  persons,  and  a  ca. 
sa.  was  issued  against  all,  but  by  direction  of  the  creditor  was 
not  executed  as  to  two  of  the  defendants,  and  was  returned  non 
est  inventus  as  to  the  third,  it  was  held  that  the  bail  of  the  latter 
was  not  liable.  The  creditor  must  honestly  try  to  collect  the 
money  from  all  the  principals  before  coming  on  the  bail  of  one.* 
It  has  been  held  that  before  bail  in  a  criminal  case  can  be  made 
liable,  the  record  must  show  that  the  principal  was  called  and  did 
not  appear.'  A  party  indicted  for  crime  gave  bail  in  the  sura  of 
$50,  wdiich  was  less  than  the  amount  required  by  the'  court. 
Afterwards  the  sheriff,  without  the  knowledge  of  the  bail,  changed 
the  penalty  of  the  obligation  to  $100.  Upon  being  informed  of 
this  alteration,  the  bail  assented  thereto,  but  there  was  no  new 
delivery  of  the  obligation.  Held,  the  bail  was  discharged.  AYhen 
*  the  obligation  was  altered  it  be3ame  absolutely  void,  and  a  parol 
assent  to  the  change  without  a  new  delivery,  did  not   revivify  it.* 

'  Enos  V.  Aylesworth,  8  Ohio  St.  322.  to  bail  in  a  civil  case  must  be  positive 

^Litchten  v.  Mott,  10  Ga.  138.   Hold-  as  to  the  amount  due,  see  Penrice  v. 

ing  that  a  ca.  sa.  must  issue  against  Cro'Jiwaite,  11  Martin  (La.)  0.  S.  537. 

the  principal  before  bail  in  a  civil  case  Where  the  creditor  connives  at  the  es- 

can  be  sued,  see  Holland  v.  Bouldin,  4  cape  of  the  debtor  from  prison,  he  can- 

T.  B.  Mon.  (Ky.)  147.  not  recover  against  the  surety  in  the 

2  Allen  V.  Breslauer,  8  Cal.  552.  prison-bounds  bond,  Conant  v.  Patter- 

4  Trice  t?.  Tunentine,  5  Iredell  Law  son,  7  Vt.  163.     Holding  that  if  the 

(Nor.  Car.)  236.  plaintiff 's  attorney  agrees  to  discharge 

*  Park  V.  The  State,  4  Ga.  329.  bail  in  a  civil  suit,  the  bail  will  be  dis- 

« Sans  V.  The  People,  3  Gilman  (111.)  charged,  see  Hughes  v.  Hollings worth, 

327.    Holding  that  an  affidavit  to  hold  1  Murphy  (Nor.  Car.)  146.    As  to  Ua- 


574  BAIL. 

§  430.  "When  failure  to  indict  principal  does  not  discharge 
bail — Justification  of  bail — Other  cases  holding  bail  liable. — 
Bail  for  the  appearance  of  the  principal  at  the  next  term  of  court 
to  answer  an  indictment,  should  one  be  found,  cannot  be  heard  to 
saj  that  their  principal  did  not  appear,  because  no  indictment  was 
found  against  him.  l^or  can  the  bail  in  such  a  case  be  heard  on 
anv  question  touching  the  indictment,  unless  they  produce  the 
principal.'  It  lias  been  held  that  the  sureties  in  a  sheriff's  recog- 
nizance, cannot  show  that  they  did  not  acknowledge  it,  for  that 
would  be  to  contradict  a  solemn  record.'^  It  has  been  held  no 
defense  to  bail  in  a  criminal  case,  that  the  principal  by  reason  of 
mob  violence  existing  in  the  county  before  and  at  the  time  he 
should  have  appeared,  and  the  fear  of  losing  his  life  by  violence, 
had  fled,  and  could  not  safely  have  remained  in  the  county.'  A 
bail  bond  which  gives  the  name  of  the  offense  for  which  the  prin- 
cipal is  held,  sufficiently  complies  with  the  statutory  provision  of 
"  briefly  stating  the  nature  of  the  offense."  The  statutory  form 
need  not  be  literally  followed.*  If  bail  in  a  civil  suit  enter  into 
a  recognizance,  he  is  liable,  although  he  is  excepted  to  and  does 
not  justify.'  To  a  suit  uj)on  a  recognizance  for  the  appearance 
of  a  i)arty  charged  with  crime,  the  bail  cannot  set  up  as  a  defense 
the  fact  that  the  several  amounts  for  wdiich  they  justified,  do  not 
equal  double  the  sum  at  which  the  bail  was  fixed  by  order  of  the 
court.  '  The  justification  is  no  part  of  their  contract."  The  sheriff 
having  a  prisoner  in  charge,  and  having  authority  by  law  to  take 
bail,  did  so,  and  discharged  the  prisoner.  The  accused  appeared 
the  next  day,  and  the  sheriff  told  the  bail  that  he  would  get 
others  to  sign  the  bail  bond.     This  he  failed  to  do.     Held,  the 

bility  of  surety  on  prison-bounds  bond  ams  v.  Hodg-epeth,  5  Jones  Law  (Nor. 

when  prison  limits  have  been  enlarged,  Car.  327. 

see  Guion  1-.  Ford,  12  liobinson  (La.)  '  State «?.  Cocke,  37  Texas  155;  Fleece 

123.    Holding  that  the  surety  in    a  r.  Tlie  State,   25  Ind.   884;   State  v. 

prison-bounds  bond  cannot  surrender  Rhodius,  37  Texas,  165. 

his  principal  to  close  confinement,  see  ^  McMicken  v.   Commonwealth,    58 

Ex  parte   Badgley,    7    Cowen.    472.  Pa.  St.  213. 

Holding  that  measure  of  damages  for  ^  Sugarman  i-.   The  State,  28  Ark. 

not  surrendering  principal  in   a  civil  142. 

suit  is  the  full  amount  of  the  debt,  *  State  r.  Birchim,  9  Nevada,  95. 

even  though  the  principal  was  insolv-  *  Bramwell  v.   Farmer,  1  Taunton, 

ent,   see  Hall  r.  White,   27  Ct.  488.  427. 

Holding  that  a  party  who  signs  a  bail  « People  v.  Shirley,  18  Cal.  121.    To 

bond,  in  the  body  of  which  his  name  similar  effect,  see  People  v.  Carpenter, 

is  not  mentioned,  is  not  liable,  see  Ad-  7  Cal.  402. 


BAIL    ENTITLED   TO    INDEMNITY.  575 

bail  was  not  discliargecl.  The  autliority  of  tlie  sheriff  ceased 
when  he  took  the  bail  bond/ 

§  440.  Miscellaneous  cases  holding  bail  liable. — Two  defend- 
ants having  been  arrested  in  a  civil  suit,  gave  bail  for  their 
appearance.  Subsequently  judgment  was  recovered  against  both 
defendants,  and  a  ca.  sa.  was  issued,  upon  which  one  of  them  was 
arrested  and  tlie  other  not.  Held,  the  arrest  of  the  one  did  not 
satisfy  the  judgment  against  the  other  nor  discharge  the  bail.'^ 
A  statute  required,  that  in  criminal  recognizances  there  should 
be  two  sureties.  A  single  surety  signed  such  a  recognizance, 
and  it  was  held  that  he  was  bound.  The  law  was  not  in> 
tended  for  the  benefit  of  sureties,  but  of  the  state,  and  while  the 
statfe  might  require  two  sureties,  it  could  waive  its  rights  in  that 
regard.'  A  was  arrested  in  a  suit  ao-ainst  himself  and  B  as  co- 
partners,  and  gave  bail  to  appear  and  answer  and  abide  the  judg- 
ment in  the  case.  Held,  the  liability  of  the  bail  was  not  affected 
by  a  discontinuance  of  the  original  action  as  to  B.  The  court 
said  there  was  nothing  in  the  bond  which  limited  the  liability  to 
a  joint  judgment.  The  discontinuance  was  authorized  by  law. 
]^o  claim  of  the  bail  to  contribution  or  subrogation  was  affected, 
and  he  was  in  no  manner  injured." 

§  441.  Bail  entitled  to  indemnity. — The  legal  obligations  of 
bail  in  a  criminal  case  are,  in  effect,  the  same  as  bail  in  a  civil 

^McClnre  v.  Smith,  56  Ga.  439.  bail  to  secure  the  appearance  of  the 

*  Grouse  v.  Paddock,  8  Hun  (N.  Y.)  principal  is  valid;  Harp  r.  Osgood,  2 

.G30.  Hill  (N.  Y.)  216.     Holding  that  whero 

2  State  V.  Benton,  48  New  Hamp.  a    statute    provides    the    manner    in 

551.  which  bail  may  be  discharged,  all  the 

^Sanderson  v.  Stevens,  116  Mass.  provisions  of  the  statute  must  be 
133.  Holding  that  changing  the  complied  with,  see  Cleveland  v.  Skin- 
name  of  the  obligee  in  a  bail  bond  ner,  56  111.  500.  Holding  that  an  offi- 
does  not  discharge  the  bail  under  cer-  cer  who  has  taken  insufficient  bail  may 
tain  special  circumstances,  see  Hale  v.  be  at  once  sued  therefor  without  any 
Russ,  1  Greenl.  (Me.)  334.  Holding  previous  proceeding  against  the  bail, 
that  one  cognizor  cannot  object  that  see  Rayner  i\  Bell,  15  Mass.  377. 
another  is  not  liable,  nor  that  the  suit  Where,  during  the  pendency  of  a  civil 
against  him  has  not  been  disposed  of,  action,  the  creditor  released  the  bail 
pee  Mussulman  v.  The  People,  15  therein  from  "  all  actions,  duties  and 
111.51.  Holding  that  the  surety  in  a  demands,"  it  was  held  that  this  did 
poor  debtor's  bond  is  not  excused  be-  not  discharge  the  bail  if  judgment 
cause  the  principal  has  been  dis-  was  subsequently  recovered  in  the 
charged  as  a  bankrupt,  see  Goodwin  suit  against  the  principal;  Hoe's  Case 
V.  Stark,  15  New  Hamp.  218.  The  5,  Coke,  70  b. 
obligation  by  a  third  person  given  to 


576  BAIL. 

action,  and  bail  in  a  criminal  case  may  recover  indemnity  from 
his  principal  the  same  as  bail  or  a  surety  in  a  civil  action.  And 
in  a  suit  against  the  principal  by  the  bail  for  indemnity,  it  is  no 
defense  for  the  principal  that  the  bail  did  not  appeal  to  the  ac- 
tion on  the  recognizance,  and  take  advantage  of  a  technical  objec- 
tion. It  was  the  duty  of  the  principal  to  defend  the  action.'  If 
a  party  accused  of  crime,  in  order  to  induce  another  to  become 
his  bail,  gives  such  other  a  mortgage  for  his  indemnity,  the  mort- 
gage will  be  valid  for  that  jDurpose.  In  such  a  case  it  was  conten- 
ded that  it  was  contrary  to  public  policy  to  "  allow  a  party  to  sub- 
stitute a  property  security  to  enable  him  to  escape  an  offense."  The 
court  said:  "We  are  not  prepared  to  sustain  this  doctrine.  That 
a  principal  should,  in  case  of  default,  not  indemnify  his  bail 
against  the  effects  of  his  forfeiture  or  failure  to  attend  and  answer 
for  the  crime,  has  never  been  doubted  by  anybody,  and  no  author- 
ity is  offered  to  support  the  position."  *  It  has  been  held  that  the 
person  who  agrees  to  indemnify  bail  against  loss,  by  reason  of  his 
becoming  such,  must  be  notified  that  the  bail  has  been  damnified, 
before  he  can  sue  on  his  agreement.^ 

'  Reynolds  v.  Harral,   2    Strobhart         ^  Simpson  v.  Roberts,  35  Ga.    ISO 
Law  (So.  Car.)  87.  per  Lumpkin,  J. 

2 Reynolds  v.  Magness,  2  Iredell  Law  (Nor.  Car.)  26. 


CHAPTER  XXI. 


OF   SURETIES    ON   OFFICIAL   BONDS. 


Section. 

Liability  of  surety  on  official  bond 
required  by  statute  when  stat- 
ute not  strictly  complied  with  .  442 

Liability  of  surety  when  official 
bond  contains  provisions  in  ex- 
cess of  statutory  requirements  .  443 

Surety  on  voluntary  bond  of  offi- 
cer liable 444 

Sm-eties  of  an  officer  de  facto  lia- 
able  for  his  acts        .        .        .  445 

Liability  of  surety  of  treasurer 
where  money  deposited  with 
him  was  illegally  obtainad        .  446 

Liability  of  surety  of  tax  collector, 
etc.    '. 447 

Surety  of  sheriff  Uable  for  money 
collected  by  him,  even  though 
judgment  and  execution  irregu- 
lar      448 

When  surety  not  liable  for  default 
of  principal  occurring  before  ex- 
ecution of  surety's  obligation    .  449 

"When  an  official  bond  takes  effect  450 

Surety  of  officer  not  liable  for 
money  received  by  principal  out 
of  the  line  of  his  duties    .        .    451 

Cases  holding  surety  on  official 
bond  liable  for  particular  acts  of 
principal    .        ,        .        .        .  452 

Liability  of  surety  of  clerk  of 
court         .....  453 

Surety  on  official  bond  not  liable 
for  services  rendered  officer  by 
individuals         ....  454 

Surety  of  treasurer  liable  for  in- 
tei-est  on  pubUc  money  received 
by  him       .....  455 

Whether  surety  of  officer  liable 
for  penalty  incurred  by  officer  .  456 


Section. 

Surety  on  official  bond  discharged 
if  injured  by  act  of  obligee        .  457 

When  surety  of  sheriff  liable  for 
acts  done  by  him  after  termina- 
tion of  his  office  .         .        .        458 

Cases  holding  surety  of  officer  lia- 
ble for  his  acts  after  expiration 
of  his  official  term,  etc.      .        .  459 

Cases  holding  surety  on  official 
bond  not  liable  for  acts  of  offi- 
cer after  expiration  of  his  term  460 

When  surety  on  old  bond  of  offi- 
cer discharged  if,  under  require- 
ment of  statute,  he  gives  new 
bond 461 

Liability  of  surety  on  second  bond 
for  same  term  of  officer    .        .  462 

Liability  of  sureties  on  different 
bonds  of  same  officer  for  same 
term 463 

When  officer  holds  for  several 
terms,  surety  during  time  when 
default  occurs  liable  .        .        .  464 

When  bill  of  discovery  to  ascer- 
tain time  of  defalcation  may  be 
brought  agamst  principal  and 
different  sets  of  sureties    .        .  465 

When  surety  on  bond  for  second 
term  of  officer  liable  for  money 
received  by  him  during  iirst 
term 466 

When  surety  for  last  term  of  offi- 
cer Hable  for  previous  defalca- 
tion, presumptions,  evidence, 
etc 467 

Liability  of  surety  when  principal 
pays  defalcation  of  one  term 
with  money  received  during 
another  term     ....  468 


37 


(577) 


SUKETIES   ON    OFFICIAL    BONDS. 


Section. 

When  sureties  of  oiScer  liable  for 
duties  afterwards  imposed  upon 
him,  change  of  duties,  etc.        .  469 

Liability  of  surety  on  officii  bond 
determined  by  reference  to  the 
law  in  contemplation  when  he 
signed 470 

When  surety  liable  although  ten- 
ure of  office  or  mode  of  appoint- 
ment of  officer  changed    .        .  471 

Discharge  of  surety  by  change  pa 
emoluments  of  officer,  etc.        .  472 

When  general  bond  of  officer  cov- 
ers special  fund  collected  or  re- 
ceived bj'  him    ....  473 

Laches  cannot  be  imputed  to  the 
state;  sureties  of  one  officer  not 
dischai'ged  by  negligence  of 
other  officers      ....  474 

Surety  of  officer  not  discharged  by 
violation  of  statutes  enacted 
for  the  benefit  of  the  gcvern- 
ment         .....  475 

Surety  of  one  officer  not  discharged 
by  unauthorized  act  of  another 
officer 476 

Surety  of  government  off.cer  lia- 
ble for  money  stolen  from  or 
otherwise  lost  by  him        .        .  477 

Miscellaneous  cases  concerning 
sureties  on  official  bonds   .         .  47S 

Liability  of  surety  of  bank  clerk 
or  cashier         ....  479 

Liability  of  sureties  of  justice  of 
the  peace 480 

Wlien  sureties  on  official  bond  of 
justice  liable  for  money  received 
by  him 481 

How  sui-ety  on  official  bond  of  jus- 
tice affected  by  hia  death  .  482 

Surety  of  sheriff  or  constable  lia- 
ble only  for  his  acts  within  the 
scope  of  his  authority  or  duty  .  483 

Liability  of  surety  of  sheriff  or 
constable  for  his  act  in  seizing 
property 484 

Measure  of  damages  for  breach  of 
duty  of  sheriff  with  reference 
to  process,  etc.         .         .        ,  485 


Section. 

LiabiUty  of  surety  on  sheriff's  offi- 
cial bond  to  surety  for  debt  who 
is  injured  by  sheriff's  acts.        .  486 

Miscellaneous  cases  as  to  liability 
of  sureties  on  official  bonds  of 
sheriff  or  constable    .        .        .  4S7 

Action  against  sureties  on  sheriff's 
official  bond      ....  488 

Liability  of  surety  on  deputy  sher- 
iff's official  bond        .        .        .  489 

Whether  joint  guardians  or  ad- 
ministrators are  sureties  for 
each  other,  etc.         .        .        .  490 

Action  against  sui'ety  on  guard- 
ian's bond         ....  491 

Discharge  of  surety  of  guardian 
by  order  of  court,  etc.        .        .  492 

Liability  of  surety  of  guardian; 
miscellaneous  cases  .         .        .  493 

When  surety  of  executor  or  ad- 
ministrator not  liable  till  devas- 
tavit established  by  suit  against 
principal 494 

Cases  holding  surety  of  executor 
or  administrator  liable  without 
devastavit  being  first  estab- 
lished by  suit  against  princi- 
pal      495 

When  surety  of  executor  or  ad- 
ministrator concluded  by  set- 
tlement by  or  judgment  against 
principal 498 

Liability  of  surety  on  first  and 
second  bonds  of  executor  or  ad- 
ministra,tor        .        .         .        .  497 

Liability  and  rights  of  surety  of 
two  executors  or  administrators 
when  one  dies  or  ceases  to  act  .  498 

Surety  of  administrator  not  liable 
for  rents  nor  proceeds  of  sale  of 
real  estate         ....  499 

Sureties  of  administrator  only  lia- 
ble for  his  official  misconduct   .  50) 

Miscellaneous  cases  holding  sure- 
ty of  executor  or  administrator 
liable 501 

Miscellaneous  cases  holding  sure- 
ty of  executor  or  administrator 
not  liable 502 


PKOYISIONS   IN    EXCESS    OF    STATUTORY   EEQUIKEMEKT.  579 

§  442.  Liability  of  surety  on  oflBcial  bond  required  by  statute 
when  statute  not  strictly  complied  with. — The  liability  of  sure- 
ties on  official  bonds  is  a  subject  of  great  and  growing  impor- 
tance. The  general  principles  elsewhere  discussed  in  this  work 
are  of  course  applicable  to  such  sureties,  as  well  as  to  all  other 
sureties.  In  this  chapter,  such  cases  as  do  not  appropriately  come 
under  other  subdivisions  of  this  work,  and  as  concern  sureties  on 
official  bonds  will  be  noticed.  In  a  majority  of  instances  official 
bonds  are  given  in  pursuance  of  some  statutory  requirement.  An 
official  bond  which  is  in  substance  and  legal  effisct  the  same  as  the 
form  prescribed  by  statute,  but  is  not  in  the  same  words,  is  a  stat- 
utory bond.^  But  in  order  that  a  bond  required  by  statute  may 
be  valid  and  bind  the  sureties,  it  must  be  under  seal,  for  other- 
wise it  is  not  a  bond.''  Where  a  statute  provides  that  a  bond  with 
two  sureties  shall  be  given  by  an  officer,  such  provision  is  merely 
directory,  and  a  bond  signed  by  one  surety  only  will  bind  such 
surety.'  A  defect  in  the  approval  of  an  official  bond  cannot  be 
set  up  by  the  sureties  therein  as  a  defense.  The  object  of  re- 
quiring  the  approval  is  to  insure  greater  security  to  the  public, 
and  the  sureties  cannot  object  that  their  bond  was  accepted  with- 
out proper  examination  into  its  sufficiency  by  the  officers  of  the 
law.*  The  failure  of  the  justices  of  the  orphan's  court  to  attest 
a  sheriff's  bond,  as  required  bylaw,  is  no  objection  to  its  validity. 
The  attestation  was  not  required  for  the  benefit  of  the  sheriff  or 
his  sureties,  and  formed  no  part  of  the  inducement  for  them  to 
enter  into  the  contract.^ 

§  443.  Liability  of  surety  when  ofiScial  bond  contains  provis- 
ions in  excess  of  statutory  requirements. — Where  a  statute  pro- 
vides that  an  official  bond  shall  be  given  in  a  certain  penalty,  and 
contain  certain  conditions,  if  the  principal  and  surety  vohiiitarily 
enter  into  a  bond  in  a  greater  penalt}^,  or  which  contains  more 
onerous  conditions,  the  bond  will  be  binding,  at  least  to  tlie  extent 
of  the  statutory  requirements.  In  such  case,  tlie  conditions  in 
excess  of  the  statutory  requirements  may  be  rejected  as  surplus- 
acre,  and  the  bond  sustained  as  to  the  others.     But  if  a  bond  in 

'  McCrackeni-.  Todd,  1  Kansas,  148.  ••People    v.   Edwards,    9    Cal.   286; 

2  State  y.  Thompson,  49  Mo.  188.  McCracken  z>.  Todd,    1   Kansas,  148; 

3  Sharp  V.  United  States,  4  Watts,  Stater.  Hampton,  14  La.  An.  736. 
(Pa.)  21;  The  Justices  r.  Ennis,  5  Ga.  ^"oung-    v.   The    State,    7   Gill  & 
569;     Mears    v.    Commonwealth,    8  Johns.  (Md.)  253. 

Watts  (Pa.)  223. 


5  so  SUKETIES    ON    OFFICIAL    BONDS. 

excess  of  the  statutory  rcqnireinent  is  extorted  from  the  princi- 
pal as  a  condition  precedent  to  his  entering  upon  the  duties  of 
his  oiiice,  such  bond  is  not  binding.^  If  the  penalty  of  an  official 
bond  is  less  than  provided  by  statute  in  such  case,  it  is  not  for 
that  reason  invalid."  Where  a  state  treasurer  voluntarily  gave  an 
official  bond  in  the  sum  of  $102,500  where  the  law  only  required 
one  in  the  sum  of  $100,000,  it  was  held  the  bond  was  valid  and 
the  sureties  liable,  although  the  court  said  it  would  have  been 
otherwise  if  the  authorities  had  demanded  a  bond  greater  in 
amount  than  that  required  by  law.  The  court  said:  "  The  fixing 
of  the  amount  in  which  the  bond  shall  be  given  is  very  clearly 
for  the  protection  of  the  treasurer — to  guard  him  against  the  re- 
quirement of  excessive  security — but  there  is  nothing  in  the 
statute  in  anywise  prohibiting  him  from  giving,  or  the  examiners 
from  accepting,  a  greater,  should  the  treasurer  voluntarily  choose 
to  offer  it.  *  If  the  fixing  of  the  penalty  of  the  bond  be  for 
the  benefit  of  the  treasurer,  he  can  waive  it,  and  did  so  in  this 
case,  by  voluntarily  offering  one  in  a  penalty  exceeding  that 
required."  ^ 

§  444.  Surety  on  voluntary  bond  of  officer  liable. — If  a 
person  occupying  official  position  voluntary  gives  a  bond  provid- 
ing against  loss  by  reason  of  his  acts  as  to  matters  concerning 
which  there  is  no  statutory  provision,  such  bond,  although  not 
a  statutory  bond,  is,  if  it  is  founded  on  a  sufficient  consideration, 
and  is  not  prohibited  by  statute,  nor  contrary  to  public  policy, 
valid  and  binding  on  the  principal  and  his  surety  as  a  voluntarj^ 
common  law  obligation.'*  If  a  guardian,  without  being  required 
so  to  do  by  order  of  court,    voluntarily  gives    a  bond  which 

'  United    States    v.   Mynderse,    11  per  Lewis,  C.  J.     Holding  that  an  in- 

Blatchford,  1;  Bomar  v.  Wilson,  1  Bai-  junction  bond  which  contains  a  provis- 

ley  Law  (So.  Car.)  461;    Treasurers  v.  ion  not  required  by  statute,  but  which 

Bates,  2  Bailey  Law  (So.  Car.)  362;  the  Chancellor  has  the  right  to  require, 

Armstrong  v.  United  States,    Peters'  is  valid,  see  Jameson  v.  Kelly,  1   Bibb 

Cir.  Ct.R.  46;  M'Caraherr.  Common-  (Ky.)  479. 

wealth,   5  Watts  &   Serg.   (Pa.)  21;  ^United  States  v.    Mason,  2  Bond, 

Welsh  ?7.   Barrow,  9  Robinson  (La.)  183;   Farmers   &   Mechanics  Bank  v. 

535;  Johnston  v.   Gwathney,   2  Bibb  Polk,  1  Delaware  Ch.  R.  167;  Bank  of 

(Ky.)  186;  Boswell  v.  Lainhart,  2  La.  the  Northern  Liberties  v.  Cresson,  12 

(Miller) 397.     See,  also,  State  v.  Find-  Serg.  &  Rawle  (Pa.)  306.    See,  also, 

ley,  10  Ohio,  61.  Slawson  v.  Ker,  29  La.  An.  295;  con- 

*  Grimes  v.  Butler,  1  Bibb  (Ky.)  192.  tra,  State  v.  Bartlett,  30  Miss.  624. 

estate  V.  Rhoades,  6  Nevada,  352, 


SURETIES   OF    OFFICER   DE   FACTO.       ^  581 

miglit  liave  been  exacted  of  him  by  order  of  court,  sucb  bond 
is  good  as  a  voluntary  obligation.'  Where  the  bond  of  a  sheriff 
is  filed  too  late  to  be  good  as  a  statutory  bond,  it  is  good  at  com- 
mon law  against  him  and  his  sureties.^  A  statute  provided  that 
a  sheriff  should  give  a  bond  in  such  sum,  not  less  than  $2,000, 
nor  more  than  $50,000,  as  should  be  prescribed  by  the  probate 
court,  and  that  the  bond  should  be  approved  by  said  court. 
"Without  any  order  of  the  court,  and  witliout  any  approval  by  it,  a 
sherift'  and  his  sureties  signed  an  official  bond  in  the  penalty  of 
$10,000,  and  deposited  it  for  record.  Held,  the  bond  was  valid 
and  the  sureties  liable  thereon.^  The  bond  of  a  deputy  sheriff  is 
not  avoided  by  the  fact  that  the  county  court  did  not  enter  of 
record  that  he  was  a  man  of  honesty,  probity,  and  good  demeanor 
(which  entry  was  required  by  law  to  be  made  in  such  cases),  and 
that  he  did  not  take  the  several  oaths  required  by  law  to  be  taken 
by  a  deputy  sheriff.  To  hold  the  bond  void  in  such  a  case  would  be 
to  allow  the  deputy  to  take  advantage  of  his  own  wrong.*  Where 
there  is  no  statute  requiring  a  sheriff's  bond  to  be  acknowledged 
in  open  court,  it  is  binding  on  those  who  execute  it,  although 
not  so  acknowledged.  It  is  the  execution  of  the  bond  and  not  its 
acknowledgment  which  gives  it  validity.^ 

§  445.  Sureties  of  an  ofiBcer  de  facto  liable  for  his  acts. — It  is 
no  defense  to  the  sureties  of  an  officer  de  facto  that  he  is  not 
also  an  officer  de  jure.  Thus,  where  certain  sureties  signed  the 
bond  of  one  who  acted  as  justice  of  the  peace,  and  as  sucii,  col- 
lected money,  it  was  held  that  they  were  liable  for  his  acts,  even 
though  he  may  not  have  been  legally  elected,  nor  commissioned, 
nor  sworn  as  justice,  and  his  bond  may  not  have  been  approved 
by  the  proper  authorities.  The  court  said:  "By  signing  his 
bond  they  (the  sureties)  acknowledged  his  right  to  tlie  office,  and 
to  discharge  its  duties,  and  as  such,  recommended  him  to  the 
public.  They,  at  least,  shall  not  be  heard  to  say  that,  although 
they  signed  his  bond,  and  thereby  induced  others  to  put  money 
in  his  hands,  relying  on  their  bond  for  its  safety,  still  he  was  not 
elected,  was  not  commissioned,  was  not  sworn;  that  he  was  not, 
in  fact,  a  justice."  °     A  person  ineligible  to  the  office  of  sheriff 

'  Potter  r-  The  State,  23  Ind.  550.  ^Supervisors  of  Washington  Co.  v. 

^  Crawford  r.  Howard,  9  Ga.  314.  Dunn,  27  Gratt.  (Va.)  608. 

3  McCracken  v.  Todd,  1  Kansas,  148.  «  Green  r.  Wardell,  17  111.  278,  per 

*Cecn  V.  Early,  10  Gratt.  (Va.)  193.  Caton,  J.    To  the  same  effect,  where 


5S2  ^      SURETIES    OX    OFFICIAL    BOXDS. 

was  elected,  took  the  oath  of  office,  gave  bond  with  sureties,  and 
collected  taxes  which  he  failed  to  pay  over:  Held,  his  sureties 
were  liable  for  the  money  thus  collected.^  It  is  no  defense  to 
the  sureties  of  a  town  collector  that  the  taxes  collected  by  him 
were  not  legally  assessed,  or  that  the  collector  was  not  legally  en- 
titled to  the  office.^  The  sureties  of  a  trustee  cannot  set  up  as  a 
defense  that  the  trustee  was  irregularly  appointed  by  the  court 
upon  a  petition,  instead  of  upon  a  bill,  etc.^  A  state  treasurer 
was  re-elected,  and  accepted  a  new  commission,  and  took  a  new 
oath,  and  continued  to  discharge  the  duties  of  the  office,  but  failed 
to  file  a  new  bond"  within  the  time  prescribed  by  law,  which  failure 
by  law  worked  a  forfeiture  of  the  office:  Held,  this  was  not 
a  holding  over  of  the  old  term;  but  the  treasurer  was  an 
officer  de  facto — holding  as  of  a  new  term;  and  that  sureties 
on  a  new  bond,  afterwards  filed  by  the  treasurer,  which 
recited  his  election  as  treasurer,  were  estopped  to  deny  that  he 
was  holding  as  of  the  \\q,\y  term  de  jure.  The  court  said  it 
would  have  been  otherwise  if  he  had  been  a  mere  usurper,  and 
not  an  officer  de  facto.*'  An  official  bond  given  by  an  agent  of 
fortifications,  whose  appointment  is  irregular,  but  whose  office  is 
established  by  law,  though  void  as  a  statutory  obligation,  is  valid 
as  a  contract  to  perform  the  duties  appertaining  to  the  office  of 
agent  of  fortifications,  and  is  binding  on  the  sureties  therein.^ 
Where  failure  or  neglect  of  a  master  in  chancery  elect  to  tender 
his  bond  for  approval,  deposit  it  with  the  treasurer,  sue  out  his 
commission,  and  take  and  subscribe  certain  oaths,  is  cause  for 
forfeiture  of  the  office ;  the  sureties  of  the  master  who  is  guilty 
of  such  failure  or  neglect,  but  who  nevertheless  exercises  the  du- 
ties of  the  office  under  his  election,  are  liable  for  his  acts  and  de- 
faults."  TVhere  sureties  have  signed  a  bond  which  recites  the  of- 
ficial character  of  the  principal,  who  actually  exercises  the  duties 

the  appointment  of  a    guardian  who  ^People  r.  Norton,  9  New  York,  176. 

acted  as  such,  -was  void,  see  Corbitt  v.  *  State  v.  Rhoades,   6  Nevada,  352. 

Carroll,  60  Ala.  315.    See,  also,  Ford  ^  United  States  r.  Maurice,  2  Brock, 

r.  Clough,  8  Greenl.  (Me.)  334.  96. 

^  Jones    V.    Scanland,     6     Humph.  ^  State  t\  Toomer,  7  Richardson  Law 

(Tenn.)  195.     To  similar  effect,  with  (So.    Car.)  216.      Holding  that    the 

reference  to  sureties  of  a  district  at-  surety  of  the  collector  of  an    estate 

torn  y,  see  State  v.  Wells,  8  Nevada,  may  show  as  a  defense  that  the  court 

10-5-  which  appointed  the  collector  had  no 

^  Mayor  and  Selectmen  of  Homer  v.  jurisdiction  to  make  the  appointment, 

Merritt,  27  La.  An.  568.  see  Boyd  v.  Swing,  38  Miss.  182. 


MOXEY  DEPOSITED   WITH  Tr.EASUEER   ILLEGALLY  OBTAIXED.    5S3 

of  the  office,  they  are  estopped  "by  such  recitals  to  deny  the  offi- 
cial character  of  the  principaL  Having  given  color  to  the  prin- 
cipal's claim  upon  the  office,  and  held  him  out  to  the  world  as 
the  proper  incumbent  of  the  position,  it  would  be  manifestly  un- 
just to  permit  them  to  deny  these  facts  after  others  have  acted 
upon  them.'  The  fact  that  an  officer  who  actually  exercises  the 
duties  of  an  office,  does  not  take  the  oath  of  office,  is  no  defense 
to  the  sureties  on  his  official  bond.  Usually  the  omission  or  neg- 
lect to  take  such  oath  is  a  breach  of  duty  on  the  part  of  the  offi- 
cer, for  which  the  sureties  are  liable,  the  same  as  for  any  other 
breach  of  duty  on  his  part.^ 

§  446.  Liability  of  surety  of  treasurer  "where  money  depo.'^ited 
with  him  was  illegally  obtained. — The  board  of  supervisors  of  a 
county,  without  any  authority  of  law,  and  without  there  being 
any  legal  prohibition,  appointed  a  treasurer,  and  authorized  him 
to  borrow  $6,500.  He  borrowed  that  sum  and  then  gave  a  bond 
with  surety  for  his  good  behavior  in  the  office.  Afterwards,  v.'ith- 
out  any  color  of  authority,  he  borrowed  a  much  greater  sum,  and 
became  a  defaulter  for  the  whole.  The  supervisors  paid  all  the 
money  so  borrowed  by  their  treasurer  and  sued  the  surety  on  the 
bond.  Held,  the  surety  was  liable  for  $6,500,  and  no  more.  The 
bond  was  valid,  as  it  was  not  prohibited  by  law.  The  treasurer 
was  simpl}^  the  agent  of  the  supervisors,  and  tlsey  had  a  right  to 
take  a  bond  for  his  good  behavior.  He  was  their  authorized  agent 
to  borrow  $6,500  only,  and  the  sureties  only  became  answerable 
that  so  much  of  this  sum  as  he  might  succeed  in  obtaining 
should  be  faithfully  expended  or  accounted  for  by  him.'  The 
sureties  of  a  county  treasurer  are  liable  for  money  received  by 
him  from  the  county  commissioners,  even  though  the  commis- 
sioners may  have  exceeded  their  legal  powers  in  borrowing  tlie 
money.  "]^o  matter  whether  they  have,  or  have  not,  legal 
authority  to  borrow  money  by  issuing  scrip  or  any  other  form  of 

1  Kelly  V.   The   State,  25  Ohio  St.  tion  of  Whitby  v.  Harrison,   18  Up. 

567;  Burnett  ».  Henderson,  21  Texas,  Can.  Q.  B.  R.  606;    County  Com.   of 

588;  Inhabitants  of  Wendell  v.  Fleni-  Ramsey  Co.  v.  Brisbin,  17  Minn.  451; 

ing.  8  Gray,  613.  State  v.  Findley,  10  Ohio,  51. 

''Lyndon  v.  Miller,  36  Vt.  329.    Mu-  ^  Supervisors  of  Rensellaer  v.  Bates, 

nicipality  of  Whitby  v.  Flint,   9  Up.  17  Xew  York,  242;   see,  also,  on  this 

Can.  C.  P.  R.  449;    Laurenson  v.  The  subject,  Commonwealth  v.  Jackson's 

State,   7  Harr.  &  Johns.  (Md.)  339;  Exr.  1  Leigh  (Va.)  485. 
State  V.  Bates,  36  Vt,   387;  Corpora- 


5SJ:  SURETIES   ON    OFFICIAL    BONDS. 

security,  if  they  do  it  and  bring  tlie  money  into  the  county  treas- 
ury, the  treasurer  is  bound  to  keep  it  and  disburse  it  according  to 
law,  and  if  he  fails  in  that  duty  his  sureties  are  liable  on  the 
official  bond."  "  AYhere  county  commissioners,  in  violation  of  law, 
have  issued  scrip  which  the  county  treasurer  has  received,  deposited 
and  paid  out  as  money,  the  sureties  of  the  treasurer  are  liable  for 
his  default  with  reference  to  such  scrip,  the  same  as  if  it  had  been 
money.  The  treasurer  treated  it  as  monc}',  and  having  done  so, 
he  is  estopped  to  deny  that  it  was  money,  and  his  sureties  are  in 
no  better  position." 

§  4:4:7.  Liability  of  surety  of  tax  collector,  etc. — The  sureties 
on  a  bond  given  by  a  sherilf  for  the  collection  of  taxes,  cannot, 
when  sued  for  taxes  collected  and  not  paid  over  by  the  sheriff, 
contest  the  legality  of  the  ordinances  making  the  assessment. 
By  receiving  the  tax  roll  and  executing  the  bond,  the  sheriff  and 
his  sureties  recognized  the  legality  of  the  ordinances,  and  it  is 
too  late  to  contest  their  validity,  as  to  money  collected,  after  act- 
ing under  them  and  collecting  taxes.^  Defects  in  a  warrant  or 
tax  list  may  be  a  good  reason  for  not  executing  the  warrant,  but 
a  collector  having  collected  money  without  objection  by  the  tax- 
payers, is  liable  to  account  therefor,  and  his  sureties  cannot,  by 
reason  of  such  defects,  excuse  themselves  from  paying  the  money 
collected  by  the  principal  in  the  bond,  wherein  they  have  bound 
themselves  that  he  ''  shall  well  and  faithfully  perform  all  the 
duties  of  his  office."  *  But  where  the  bond  of  a  collector  of  taxes 
provided  that  he  should  "  well  and  truly  collect  all  such  rates  as 
should  be  committed  to  him,  for  which  he  should  have  a  sufficient 
warrant  under  the  hands  of  the  assessor  according  to  law,"  it  was 
held  that  money  received  by  the  collector  under  a  tax  list  not  signed 
by  the  assessor,  was  not  legally  collected,  was  not  within  the  condi- 
tion of  the  bond,  and  the  sureties  on  the  bond  were  not  liable 
therefor.^     A  surety  of  a  tax  collector  of  city  taxes  cannot  protect 

'Bochmer  v.  County  of  Schuylkill,  sippi  County  v.   Jackson,  51   Mo.  23. 

46  Pa.  St.  452.  But  see,  to  a  contrary  effect,  Quynn  r. 

^  Wylie  V.  Gallagher,  46  Pa.  St.  205.  The  State,  1  Harr.  &  Johns.  (Md.)  3G; 

As  to  liability  of  a  surety  when  money  Ellicott  v.  The  Le\'y  Court,  1  Harr.  & 

is  received   by  the  principal  without  Johns.  (Md.)  359. 

authority,  see  Franklin  v.  Hammond,  *  Inhabitants   of  Orono  v.    Wedge- 

45  Pa.  St.  507.  wood,  44  Me.  49. 

'McGuire  v.  Bry,  3  Robinson  (La.)  ^Foxcroft  t\  Nevens,  4  Greenl.  (Me.) 

196.    To  similar  effect,  see  Miller  v.  72. 
Moore,  3  Humph.  (Tenn.)  189j  Missis- 


MONEY  COLLECTED  BY  SHERIFF  WHEN  JUDGMENT  IKEEGULAIi.    Obo 

liimself  against  liability  for  taxes  received  by  the  collector  and 
not  paid  over,  by  showing  that  a  portion  of  t)ie  taxes  stated  in 
the  tax  warrant,  and  paid  over  to  the  collector,  had  been  levied 
on  certain  persons  and  property  not  subject  to  taxation.  Having 
received  the  money,  it  was  the  duty  of  the  collector  to  turn  it 
over,  and  it  did  not  lie  in  his  mouth,  nor  in  that  of  liis  surety,  to 
say  it  had  been  illegally  levied/  The  sureties  of  a  tax  collector 
are  liable  for  money  collected  by  him,  even  though  he  is  infor- 
mally notified  to  make  the  collection.^  If  a  tax  collector  actually 
collects  taxes,  it  is  no  defense  to  his  sureties  with  reference  to  the 
money  so  received,  that  the  tax  roll  was  not  delivered  to  him  till 
after  the  expiration  of  the  time  limited  by  law  for  that  purpose.^ 
But  it  has  been  held  a  sufficient  defense  to  the  sureties  on  a  tax 
collector's  bond,  that  no  tax  roll  was  delivered  to  him.*  The 
sureties  on  the  official  bond  of  a  state  treasurer  are  responsible 
for  all  money  or  other  things  received  by  him  into  the  treasury 
by  virtne  of  his  office,  and  not  properly  accounted  for,  though 
such  money  or  other  things  have  not  been  audited  by  the  auditor, 
and  the  auditor  has  o-iven  no  warrant  or  certificate  authorizins: 
the  treasurer  to  receive  the  same.  The  reception  of  the  property 
by  the  treasurer  is  that  which  makes  the  sureties  liable.  The 
audit  is  one  method  of  sliowing  that  the  treasurer  has  received 
the  proj)erty,  and  is  a  matter  provided  for  the  safety  of  the 
state.' 

§  44:8.  Surety  of  sheriff  liable  for  money  collected  by  him, 
even  though  judgment  and  execution  irregular. — In  an  action  on 
a  slierifl:''s  bond  foV  money  collected  by  the  sheriff  on  an  execu- 
tion in  favor  of  the  plaintiff,  neither  the  sheriff  nor  his  sureties 
can  plead  that  there  was  no  judgment  on  which  the  execution 
issued.  "The  sheriff  recognized  the  legality  and  authority  of 
the  execution  by  acting  upon  it;  and  after  having  collected  the 
money,  it  is  not  for  him  to,  say  that  the  writ  was  illegal  or  un- 
authorized by  the  judgment.""  So,  when  a  constable  has  col- 
lected money  on  execution,  it  is  no  defense  for  either  him  or  his 
sureties  that  the  judgment  and  execution  were  irregular  by  rea- 

*  Moore  v.  Allegheny  City,  18  Pa.  St.  *  Municipality  of  Whitby   r.  Flint, 

55.  9  Up.  Can.  C.  P.  E.  449. 

2  State  V.  Odoni,  1  Spears  Law  (So.  ^  Wilson  v.   Burfoot,  2  Gratt.  (Va.) 
,  Car.)  245.  134. 

3  Todd  V.  Perry,  20  Up.  Can.  Q.  B.  egt^te  v.  Hicks,  2  Blackf.  (Ind.) 
R.  649.                                                        336,  per  Scott,  J. 


5S6  SUKETIES   ON    OFFICIAL    BONDS. 

son  of  being  in  farov  of  the  plaintiffs  bj  their  firm  name.'  A 
sheriff  seized  certain  property,  for  wliich  a  forthcoming  bond 
with  surety  was  given.  The  execution  on  whicli  the  sheriff  seized 
the  property  was  not  under  the  seal  of  the  court  from  whicli  it 
issued.  Held,  the  execution  had  no  validity  as  against  the  j)rin- 
cipal,  and  the  surety  was  not  bouiid.'^ 

§  449.  "When  surety  not  liable  for  default  of  principal  occur- 
ring before  execution  of  surety's  obligation. — As  a  general  rule, 
the  bond  of  a  public  officer  has  no  retroactive  effect,  and  does 
not  cover  past  delinquencies  unless  it  iu  terms  says  that  it  is  to 
have  such  effect.*  Rector  was  commissioned  surveyor  of  public 
lands  June  13th,  1823,  and  his  ofiicial  bond  was  dated  August 
ITtli,  1823.  Between  March  3d  and  June  4th,  in  the  same  vear, 
there  had  been  paid  to  Eector  from  the  treasury  a  large  sum, 
which  was  thus  paid  to  him  before  the  date  of  his  commission 
and  bond.  Held,  that  for  any  sum  paid  Rector  before  the  execu- 
tion of  the  bond,  there  was  but  one  ground  on  which  the  sureties 
could  be  held  liable,  and  that  was  that  Rector  still  held  the  money 
when  the  bond  was  executed.  If  he  still  held  it  he  was  the  bailee 
of  the  United  States.  If  not,  he  had  become  a  debtor  or  de- 
faulter to  the  government,  and  his  oft'ense  was  already  complete. 
If  it  v\'as  intended  to  cover  past  delinquencies,  the  bond 
should  have  said  so.  If  it  did  not  say  so,  it  covered  no  delin- 
quencies occurring  prior  to  its  execution.*  A  county  court  had 
power  as  often  as  it  deemed  proper  to  rule  the  sheriff  to  give 
additional  sureties.  Held,  that  persons  who  in  September,  1865, 
voluntarily  signed  their  names  to  the  sheriff's  old  bond,  which 
had  been  executed  in  the  preceding  February,  became  liable  to 
the  same  extent  as  if  they  had  signed  their  names  to  such 
bond  when  it  was  first  executed  in  February,  and  that  it  was  an 
official  bond  as  to  such  sureties.^  A  being  surety  of  a  county 
treasurer,  the  treasurer  gave  a  bond  Avith  new  sureties,  and  the 
bond  on  which  A  was  liable  was  destroyed,  all  parties  then  sup- 
posing the  treasurer  was  not  a  defaulter.  Afterwards  it  was  dis- 
covered that  the  treasurer  was  a  defaulter  before  the  destruction 

'  Nutzenholster    v.    The    State,   37  ^Farrar  i\  United  States,  5  Peters, 

Ind-  4-57.  373.      To  similar  effect,    see    United 

' King.?;.  Baker,  7  La.  An.  670.  States  v.  Boyd,  15  Peters,  187. 

2  Myers  v.  United  States,  1  McLean,  « Commonwealth  v.  Adams,  3  Bush. 

493;     United    States    v.    Spencer,    2  (Ky.)  41.     Holding  the  surety  of  au 

McLean,  405.  executor  liable  for  monej'^  received  by 


WHEN   AN   OFFICIAL    BOND    TAKES    EFFECT.  587 

of  the  bond  on  wliicli  A  was  liable.     Held,  A  was  liable  in  equity 
for  such  default.' 

§  450.  When  an  ofTicial  bond  takes  effect. — With  reference 
to  the  time  when  an  official  bond  takes  effect,  the  following  cases 
are  instructive:  The  bond  of  a  deputy  postmaster,  takes  effect 
and  speaks  from  the  time  that  it  reaches  the  postmaster  general 
and  is  accepted  by  him,  and  not  from  the  day  of  its  date,  nor 
from  the  time  it  is  deposited  in  the  post  office  to  be  sent  forward. 
The  acceptance  of  the  bond  is  a  condition  precedent  to  the  post- 
master taking  office,  and  the  bond  cannot  relate  back  to  any 
earlier  date  than  the  time  of  its  acceptance.^  An  act  of  congress 
required  the  bond  given  by  a  collector  of  customs,  to  be  approved 
by  the  comptroller  of  the  treasury.  Such  a  bond  was  dated  June 
2d;  the  collector  died  July  24th,  and  a  wi-itten  approval  of  the 
bond  was  entered  thereon  by  the  comptroller,  July  31st.  The  giv- 
ing of  a  bond  was  not  a  condition  precedent  to  the  taking  of  office 
by  the  collector,  as  he  might  act  for  three  months  without  giving 
bond.  The  sureties  in  the  bond  contended  that  they  were  not 
bound,  because  the  bond  had  not  been  delivered  till  after  the 
princi]3al  was  dead.  Held,  the  bond  must  take  effect  from  the 
time  the  principal  and  sureties  first  parted  wdth  it  and  sent  it  on 
for  approval,  and  not  from  the  date  of  its  approval.  The  approval 
need  not  have  been  in  writing,  and  the  statute  requiring  approval 
was  merely  directory.  "  A  bond  may  not  be  a  complete  contract 
until  it  has  been  accepted  by  the  obligee,  but  if  it  be  delivered 
to  him  to  be  accepted,  if  he  choose  to  do  so,  that  is  not  a  condi- 
tional delivery,  which  will  postpone  the  obligor's  undertaking  to 
the  time  of  its  acceptance,  but  an  admission  that  the  bond  is  then 
binding  upon  him,  and  will  be  so  from  that  time,  if  it  shall  be 
accepted.  When  accepted,  it  is  not  only  binding  from  that  time 
forward,  but  it  becomes  so  upon  both,  from  the  time  of  delivery."  ^ 
The  surety  of  a  collector  of  tolls  is  liable  for  money  collected  by 
him  for  the  state  on  the  day  of  the  date  of  the  bond,  even  if  the 
collector  had  been  previously  acting  in  the  same  capacity  under 
another  bond.* 

the  executor  before  the  execution  of  ^  United  States  r.  LeBaron,  19  How- 

the  bond,  see  Choate  v.  Arrington,  116      ard  (U.  S.)  73. 

Mass.  552.  ^  Broome  v.  United  States,  15  How- 

>  County  of  Fontenac  v.  Breden,  17      asd  (U.  S.)  143,  per  Wayne,  J. 
Grant's  Ch.  R.  645.  *  Miller  ?'.  Commonwealth,  8  Pa.  St. 

444. 


588  SURETIES    ON    OFFICIAL    BONDS. 

§  451.  Surety  of  ofEcer  not  liable  for  money  received  by 
principal  out  of  the  line  of  his  duties. — The  SUrotie.S  on  an  of- 
ficial bond  are,  as  a  general  rule,  only  liable  for  sucli  sums  of 
money  as  their  principal  may  lawfully  receive  by  virtue  of  his 
Oifice.  Thus,  the  sureties  on  the  bond  of  a  town  superv^isor,  con- 
taining the  condition  that  he  will  "  account  for  all  moneys  be- 
longing to  the  town,  coming  into  his  hands  as  such  supervisor," 
are  only  liable  for  money  wliich  their  principal  is  authorized  and 
bound  by  law  to  receive  in  his  official  capacity  as  disbursing 
agent  of  the  town,  and  not  for  that  of  which  he  becomes  the  vol- 
untary custodian,  or  which  is  ordered  by  the  board  of  snpervis- 
ors,  without  authority  of  law  to  be  paid  to  him.  "The  condition 
of  the  bond  must  be  construed,  and  the  liability  of  the  sureties 
limited  in  reference  to  the  statutes  making  the  snpervisor  a  cus- 
todian of  public  moneys.  These  statutes  make  a  ]3art  of  the 
contract  of  the  surety.  '"  Liabilities  of  sureties  are  strictissimi 
juris,  and  cannot  be  extended  by  construction  or  enlarged  by 
the  acts  of  others."  ^  "Where  a  fund,  being  in  the  hands  of  an  or- 
dinary under  a  mistaken  notion  as  to  his  right  to  receive  and 
hold  it  officially  (which  in  fact  he  had  no  right  to  do),  was  paid 
over  to  his  successor,  who  threatened  suit  unless  such  payment 
was  made,  it  was  held  that  the  surety  of  the  successor  was  not 
liable  for  such  money.*  The  bond  of  an  overseer  of  the  poor  pro- 
vided that  he  should  account  for  all  such  sums  of  money  as 
should  "  cojne  into  his  hands  by  virtue  of  his  office  of  overseer." 
Held,  his  sureties  were  not  liable  for  money  which  he  borrowed 
without  authority,  and  applied  to  parochial  purposes,  but  for 
wdiich  he  feiled  to  account.^  The  sureties  on  a  bond  for  the  con- 
duct of  an  agent  in  paying  invalid  pensions,  are  not  answerable 
for  his  defaults  with  reference  to  the  payment  of  navy  and  -pvi- 
vateer  pensions,  although  he  is  also  agent  for  the  payment  of  the 
latter  pensions.*  The  sureties  of  a  register  of  the  land  office  are 
not  liable  for  money  received  by  him  fi'om  a  party  who  enters 
lands.  The  money  should  have  been  paid  to  the  state  treasurer, 
and  it  was  no  part  of  the  duty  of  the  register  to  receive  it.^ 

'  People  V.  Pennock,   60  New  York,  *  United  States  v.  White,   4  Wash- 

421,  per  Allen,  J.  ington,  414. 

*  State  V.  White,  10  Richardson  Law  ^  Saltenberry  v.  Loucks,  8  La.  An. 

(So.  Car.)  442.  95. 

"Leigh  V.  Taylor,  7  Barn.  &    Cress. 
491. 


MONEY    RECEIVED    BY    PRINCirAL    OUT    OF    LINE    OF    DUTY.      5S9 

Where  tlie  law  concerning  school  funds  required  the  county  court 
to  keep  the  bonds  for  the  loan  of  such  funds,  and  to  renew  bonds 
and  pass  upon  the  sufficiency  of  the  same,  it  was  held  that  if  by 
order  or  permission  of  the  court  these  duties  devolved  upon  the 
county  treasurer,  and  any  loss  happened  thereby,  the  sureties  of 
the  treasurer  were  not  liable  therefor.  The  sureties  are  presumed 
to  have  contracted  with  reference  to  the  law,  and  to  hold  them 
responsible  for  other  duties  than  the  law  imposed  on  their  prin- 
cipal, would  be  "  a  palpable  violation  of  the  letter  and  spirit  of 
the  contract."  *  A  sheriff  gave  bond  for  the  collection  of  taxes, 
the  bond  by  mistake  reciting  that  it  was  given  for  taxes  levied 
imder  a  law  which  had  in  fact  expired  years  before.  Held,  the 
sureties  were  not  liable  for  taxes  collected  by  the  sheriff  during 
the  current  year.'^  The  sureties  for  the  faithful  discharge  by  an 
ordinary  of  his  duties,  are  not  liable  to  one  who  claims  to  be 
the  lowest  bidder  for  building  a  bridge,  because  of  the  act  of 
the  ordinary  in  awarding  the  contract  to  another.' 

§  452.  Cases  holding  surety  on  official  bond  liable  for  particu- 
lar acts  of  principal. — The  bond  of  a  deputy  collector  of  internal 
revenue,  provided  that  he  should  pay  over  all  moneys  that  might 
come  into  his  hands  by  virtue  of  his  office."  He  collected  some 
internal  revenue  before  it  was  payable,  and  ftiiled  to  pay  it  over: 
Held,  the  money  was  received  by  virtue  of  his  office,  and  his  sure- 
ties were  liable  therefor."  Where  a  county  clerk  fraudulently 
countersigned  and  filled  up  a  warrant  upon  the  treasury  which 
had  been  signed  in  blank  by  the  chairman  of  the  board  of  super- 
visors, and  then  drew  the  money  on  such  order,  it  was  held  that 
while  this  was  a  misuse  of  his  official  authority,  it  was  neverthe- 
less an  official  act  for  which  the  sureties  on  his  official  bond  were 
liable.'  The  bond  of  a  city  clerk  provided  that  he  should  faith- 
fully discharge  the  duties  of  his  office.  The  clerk,  under  color 
of  his  office,  filled  up  and  signed  certain  city  orders  (which  had 
been  signed  in  blank  by  the  mayor),  made  them  payable  to  him- 
self, presented  them  to  the  treasurer,  and  procured  the  money 

'  Nolley  V.  Calloway  County  Court,  As  to  when  the  bond  of  a  tax  collector 

11  Mo.  447,  per  Napton,  J.  covers  money  received  by  him  for  li- 

°  Branch  v.   Commonwealth,  2  Call  censes,   see  State  v.  Hampton,  14  La. 

(Va.)  510.  An.  690.     As  to  the  liability  of  the 

2  Smith  V.  Stapler,  53  Ga.  300.  surety  of  the  committee  of  a  lunatic, 

"Fuller?;.  Calkins,  22  Iowa,  301.  see  Joyner  v.   Cooper,   2  Bailey  Law 

5  People  V.  Treadway,  17  Mich.  480.  (So.  Car.)  199. 


590  SURETIES   ON   OFFICIAL   EONDS. 

tliereon  when  notliing  was  due  tiim  from  the  city:  Held,  this 
was  a  breach  of  liis  official  bond,  for  which  his  sureties  were  lia- 
ble.^ Where  the  charter  of  a  city  provides  that  the  comptroller 
shall  perform  "  such  duties  in  relation  to  the  finances  "  as  "  shall 
be  prescribed  by  ordinance,"  an  ordinance  is  valid  which  empow- 
ers him  to  negotiate  and.  dispose  of  city  bonds,  and  the  sureties 
on  his  official  bond  are  liable  for  any  misapplication  by  him  of 
the  proceeds.''  In  a  suit  on  a  county  treasurer's  bond  wlfere 
money  had  been  raised  for  a  particular  purpose,  which  the  treas- 
urer had  received  and  not  paid  over,  it  was  held  that  "  county 
funds  raised  for  a  specific  purpose,  can  be  appropriated  by  tlie 
treasurer  only  for  that  purpose.  The  money  was  borrowed  to 
pay  off  certain  indebtedness.  The  treasurer  could  not  divert  the 
funds  from  that  purpose  without  rendering  himself  and  sureties 
liable  to  the  holders  of  that  indebtedness."  ^ 

§  453.  Liability  of  surety  of  clerk  of  court. — The  sureties  on 
the  bond  of  a  clerk  of  a  court  conditioned  for  the  faithful  per- 
f(.)rmance  of  the  duties  of  his  office,  are  liable  for  any  failure  on 
his  part  to  perform  an  official  duty.  They  are  liable  for  his  non- 
feasance as  well  as  his  misfeasance.  And  where  a  party  recovered 
a  judgment,  but  the  clerk,  in  entering  it  up,  omitted  to  name  the 
sum  recovered,  in  consequence  of  which  a  levy  of  execution  on 
personal  property  was  defeated,  and  the  plaintiff  prevented  from 
collecting  his  debt,  it  was  held  that  his  sureties  were  liable  to  the 
party  injured.'  Where,  by  implication  from  various  statutes,  the 
clerk  of  a  court  was  authorized  to  receive  money  upon  judgments 
recorded  in  his  office,  it  was  held  that  his  sureties  were  liable  for 
money  so  received  by  him.*  Where  there  was  no  law  making  it 
the  duty  of  a  clerk  of  the  court  to  receive  money  deposited  as  a 
tender,  it  was  held  that  the  sureties  on  the  official  bond  of  such 
clerk  were  not  liable  for  money  paid  into  open  court  and  handed 
to  the  clerk  with  an  answer  of  tender,  for  the  purpose  of  keeping 
the  tender  good,  the  clerk  giving  his  receipt  as  such  for  the 
money,  but  there  being  no  order  of  court  in  reference  thereto." 
Where  a  clerk  and  master  (one   man   holding  both   offices   by 

^  Armington  v.  The  State,  45  Ind.  10.  shall  be  paid  to  the  county  treasurer, 

*  Stevenson  v.  Bay  City,  26  Mich.  44.  see  Gilbert  v.  Isham,  16  Ct.  525. 
^Doty  V.  Ellsbree,    11    Kansas,  209.  *The  Governor  v.  Dodd,  81  111.  162. 

per  Brewer,  J.     As  to  when  the  bond  ^  Morgan  v.  Long,  29  Iowa,  434. 

of  a  state's  attorney  covers  fuies  re-  ®  Carey  v.  The  State,  34  Ind.  105. 

ceived  by  him,  which  the  law  directs 


SERVICES    KENDEEED    OFFICER    BY    INDIVIDUALS.  591 

statute)  is  appointed  by  the  court  a  receiver,  and  as  sucli  receives 
into  liis  hands  money  or  property,  the  sureties  on  tlie  official 
bond,  given  to  secure  the  faithful  performance  of  his  duties  as 
clerk,  are  not  responsible  for  the  money  or  property  so  received 
by  him.*  "Where  it  is  not  a  duty  imposed  by  statute  upon  a  connty 
clerk  to  receive  money  belonging  to  a  ward  from  a  guardian,  the 
sureties  on  the  clerk's  official  bond  are  not  liable  for  snch  money 
received  by  the  clerk,  though  received  by  him  pursuant  to  an 
order  of  the  court  of  common  pleas,  directing  the  guardian  upon 
resigning  his  trust  to  dej^osit  with  the  clerk  the  bala^ice  in  his 
hands  due  the  ward.  The  sureties  "  were  only  liable  for  the  fail- 
ure of  the  clerk  to  discharge  his  official  duties.  It  was  not  his 
duty,  nor  could  he  as  "clerk  receive  the  money  belonging  to  the 
estate."  *  A  statute  provided  that  before  a  guardian  entered  upon 
the  duties  of  his  office  he  should  give  a  bond.  A  clerk  issued  to 
a  guardian  a  certificate  of  guardianship  before  he  filed  any  bond, 
and  the  guardian  wasted  tlie  ward's  estate.  Held,  the  sureties  on 
the  clerk's  official  bond  were  not  liable  to  the  ward  for  tlie  issuing 
of  such  certificate.  It  was  no  part  of  tlie  clerk's  duty  to  issue 
such  certificate,  and  the  certificate  conferred  no  authority  on  the 
guardian,  who  had  no  legal  power  to  act  unless  he  first  gave  a 
bond." 

§  454.  Surety  on  official  bond  not  liable  for  services  rendered 
officer  by  individuals. — An  official  bond  is  usually  only  a  securi- 
ty to  the  jDarty  the  officer  is  serving,  and  is  not  a  security  for  any 
services  rendered  to  the  officer  b}'  individuals.  Thus,  the  condi- 
tion of  a  tax  collector's  bond  was  that  he  should  collect  and  pay 
into  the  state  and  county  treasury  all  the  state  and  county  taxes, 
and  should  do  and  perforin  all  other  duties  which  pertain  to  his 
office.  Held,  the  sureties  on  the  bond  were  not  liable  to  the  pub- 
lishers of  a  newspaper  for  the  payment  of  the  costs  of  advertising 
sales  of  property  for  taxes,  even  though  the  law  made  it  the  duty 
of  the  collector  to  advertise  such  sales  in  a  newspaper.*  The 
sureties  on  a  sheriff's  official  bond  are  not  liable  to  a  printer  for 
advertising  notices,  rules,  audits,  inquisitions  and  sales  ordered 

1  Waters  v.  Carroll,  9  Yerger  (Tenn.)  ^  State  v.   Sloane,   20  Ohio,   327. 

102.  "  Brown  v.  Phipps,  6  Smedes  &  Mar. 

^  Scott  v.  The  State,  46  Ind.  203,  per      (Miss.)  51. 
Buskirk,  J.     To  similar  effect,  see  The 
State  V.  Givan,  45  Ind.  267. 


592  SURETIES   ON   OFFICIAL    BONUS. 

by  tliG  sheriff,  tlioiigli  it  was  a  part  of  his  official  duty  to  cause 
such  advertisements  to  be  made,  for  neglect  of  which  his  sure- 
ties would  have  been  responsible.  "  Tlie  printer  who  publishes 
the  notices  does  his  work  for  the  sheriif,  and  not  for  the  parties. 
His  position  is  no  better  than  that  of  a  sheriff 's  deputy,  or  of  one 
who  lets  to  him  a  horse  or  vehicle  to  enable  him  to  execute  pro- 
cess. It  does  not  follow  because  the  duty  to  advertise  is  official, 
the  duty  to  pay  is  also  official."  ^  A  sheriff  collected  on  execution 
the  printer's  bill  for  advertising  the  property,  and  failed  to  pay  it 
over.  Held,  the  sureties  on  his  official  bond  were  not  liable  for 
such  default.  The  court  said  that  the  amount  of  the  printer's  bill 
depended  on  the  contract  between  him  and  the  sheriff,  and  there- 
fore was  not  fees.  The  printer  would  collect  it  from  the  sheriff 
whether  the  sheriff  collected  it  from  the  defendant  or  not.  The 
printer's  bill  is  like  a  tavern  bill  made  in  transporting  a  prisoner, 
or  other  expense  which  the  sheriff  may  have  taxed  as  necessary 
outlay,  but  nothing  can  be  collected  therefor,  except  through  the 
sheriff.^ 

§  455.  Surety  of  treasurer  liable  for  interest  on  public  money 
received  by  him. — It  has  been  held  that  a  county  treasurer  is  lia- 
ble to  the  county  for  interest  received  on  deposits  of  county 
funds.  His  liability  arises  not  only  from  his  fiduciary  relation, 
but  from  the  fact  that  the  interest  belongs  to  the  county  and 
comes  into  his  hands  as  county  treasurer,  and  the  sureties  on  his 
official  bond  are  also  liable  for  such  interest.  "  The  notion  that 
a  public  officer  may  keep  back  interest  which  he  has  received 
upon  a  deposit  of  public  money,  is  an  affront  to  law  and  morals, 
for  if  done  with  evil  intent,  it  is  nothing  less  tlian  embezzle- 
ment." ^ 

§  456.  Whether  surety  of  oSicer  liable  for  penalties  incurred 
by  officer.— The  bond  of  a  county  clerk  was  conditioned  that  he 
should  well  and  truly  perform  all  such  duties  as  were  or  might  be 
required  of  him  bylaw  during  the  time  he  was  clerk.  The  clerk 
issued  a  marriage  license  to  a  minor  without  the  proof  required 
by  law,  and  thereby  became  liable  for  a  j)enalty  of  $500,  for  wliich 
judgment  was  recovered  against  him,  but  the  same  remaining 

'Common-wealth  v.   Swope,  45  Pa.  ^Supervisors   of    Richmond    Co.   v. 

St.  535,  per  Strong,  J.  Wandel,  6  Lansing  (N.  Y.)  33  per  Gil- 

"^  Allen  V.  Ramey,  4  Strob.  Law  (So.  bert,  J. 
Car.)  30. 


SURETY   INJURED    BY   ACT   OF    OBLIGEE.  593 

nnsatisfied,  suit  was  brought  against  tlie  sureties  on  liis  official 
bond.  By  law,  one  balf  of  tlie  penalty  went  to  the  party  suing, 
and  the  other  half  to  the  state.  Held,  the  clerk  was  subject  to 
the  penalty,  but  no  one  was  injured,  and  consequently  no  one 
could  recover  against  the  sureties  on  the  bond.'  The  twelv^e  per 
cent,  penalty  given  by  the  Illinois  school  law  for  the  failure  of  the 
collector  to  pay  over  school  taxes  on  presentation  of  the  county 
clerk's  certificate  and  demand  of  the  township  treasurer,  may  be 
recovered  of  the  collector  and  his  sureties  in  an  action  of  debt  on  his 
bond.  This  was  held  to  be  so,  although  the  statute  spoke  only  of 
a  judgment  to  be  rendered  against  the  collector  for  such  penalty." 
It  has  been  held  that  the  sureties  of  a  sheriff  are  not  liable  for 
penalties  imposed  on  him  by  statute  for  not  returning  executions, 
etc." 

§  457.  Surety  on  official  bond  discharged  if  injured  by  act  of 
obligee. — As  a  general  rule,  the  sureties  on  an  official  bond  will 
be  discharged  by  any  unauthorized  dealings  between  the  prin- 
cipal and  obligee,  which  varies  their  situation  or  increases  their 
risk.  Thus,  where  a  constable  collected  money  on  execution  and 
tendered  it  to  the  creditor,  who  did  not  take  it,  but  told  the  con- 
stable he  might  keep  it  for  several  weeks  or  months,  it  was  held 
the  sureties  on  the  constable's  official  bond  were  discharged  from 
all  liability  on  account  of  such  money.  Tlie  Court  said:  "The 
effect  of  letting  the  money  remain  in  the  hands  of  the  constable, 
whether  it  be  considered  as  a  loan  or  accommodation,  placed  the 
the  plaintiff  in  execution  and  the  constable  in  a  new  relation,  to 
which  the  suret}^  was  neither  privy  nor  party.  The  plaintiff 
should  not  have  been  liberal  at  the  expense  of  the  security.  * 
The  plaintiff,  in  agreeing  to  leave  his  money  in  the  officer's 
hands,  in  effect  loans  him  the  money,  puts  the  security  in  great 
jeopardy  and  seriously  injures  him."*  If  a  collector  of  internal 
revenue  consents  to  the  use  of  the  j)ublic  money  by  his  deputy 
collector,  in  his  jirivate  business  of  buying  and  speculating  in 
grain,  it  will  be  a  fraud  on  the  sureties  of  the  deputy,  and  will 
discharge  them  from  liability  on  his  bond  for  a  defalcation  on  his 

'  Brooks  V.  The  Governor,   17  Ala.  tins  subject,  State  v.  Harrison,  Harper 

806.  Law  (So.  Car.)  83. 

^Tappan  v.  The  People,  67  111.  339.  "Wells  v.  Grant,  4  Yerg.    (Tenn.) 

^Treasurers  v.  Hilliard,  8  Richard-  491,  per  Peck  and  Green,  J  J. 
son  Law,  (So.  Car.)  412;  see,  also,  on 

38 


594  SURETIES   ON   OFFICIAL    BONDS. 

part  resulting  from  it,^  Where  goods  levied  on  by  a  sheriff  are 
sold  under  an  agreement  of  the  parties  in  a  mode  whollj^  unknown 
to  the  due  execution  of  a  fieri  facias,  the  parties  cannot  hold 
the  sheriff  officially  responsible,  and  thereby  charge  the  sure- 
ties on  his  official  bond  with  his  defaults  in  that  regard.^ 
Certain  county  commissioners  appointed  one  B  collector  of  taxes, 
and  issued  the  tax  warrant  and  duplicate  to  him,  but  he  failed  to 
give  bond.  C  was  then  appointed  collector,  and  gave  bond  with 
sureties,  and  collected  taxes,  and  paid  over  such  sums  as  he  re- 
'ceived.  B  also  collected  taxes,  which  he  failed  to  pay  over.  C's 
sureties  were  sued  on  their  bond  for  the  taxes  collected  by  B,  and 
it  was  claimed  that  as  they  were  by  their  bond  liable  for  the  col- 
lection of  the  taxes  by  C,  they  w^ere  liable  for  all  the  taxes,  no 
matter  by  whom  they  were  collected.  Held  they  were  not  liable 
for  the  taxes  collected  by  B,  because  the  commissioners,  by  their 
act  liad  enabled  B  to  collect  such  taxes  as  he  collected,  and  the 
parties  who  had  paid  B,  thus  having  the  apparent  authority  to 
collect  tlie  taxes,  could  not  be  forced  to  pay  them  again.'  Where 
certain  heirs,  by  an  act  under  private  signature,  regulated  be- 
tween themselves  the  mode  of  partition  of  an  estate,  and  author- 
ized the  curator  to  pay  certain  claims,  and  further  verbally  au- 
thorized him,  in  order  to  save  expense,  to  settle  the  affairs  of  the 
estate  out  of  court,  it  was  held  that  the  sureties  of  the  curator 
were  not  discharged,  because  nothing  had  been  done  but  what  the 
court  would  have  ordered  done  if  there  had  been  no  interference.* 
§  458.  When  surety  of  sheriff  liable  for  acts  done  by  him 
after  termination  of  his  office. — Important  questions  frequently 
arise  with  reference  to  the  liability  of  sureties  of  public  officers 
for  the  acts  or  defaults  of  such  officers  after  the  expiration  of 
their  term  of  office.  These  questions  usually  turn  upon  the  law 
in  force  at  the  time,  the  wording  of  the  bond,  and  the  circum- 
stances under  which  the  acts  are  done  or  defaults  committed,  and 
these,  of  course,  greatly  vary.  The  subject  will  be  best  illustrated 
by  a  review  of  the  cases  in  which  it  has  been  discussed.  Thus, 
by  law,  the  office  of  constable  was  for  one  year,  but  they  were  to 

'Pickering  v.  Day,  3  Houston  (Del.)  mortq'ag-e  on  land  in  payment  for  his 

474.  defalcation,  see  Goodin  v.  The  State, 

« Webb  V.  Anspach,  3  Ohio  St.  522.  18  Ohio,  6. 
Holding  that  the  sureties  of  a  county  "  Cannell  v.  Craw'ford  Co.  59  Pa.  St. 

treasurer  are  discharged  if  the  county  196. 
commissioners  take  his  note    and    a  •*  Perkins  v.  Cenas,  15  La.  An.  60. 


ACTS  DONE  BY  SHEKIFF  AFTER  TEEMINATION  OF  OFFICE.         595 

liold  till  their  successors  were  elected  and  qualified.  A  con- 
stable's bond  recited  that  he  had  been  elected  constable  "  for  the 
term  of  one  year,  and  until  his  successor  *  (should)  be  elected 
and  qualified,"  and  provided  that  he  should  faithfully  discharge 
the  duties  of  the  ofiice.  He  was  elected  for  a  second  term,  and 
continued  to  exercise  the  ofiice,  but  failed  to  qualify  for  such 
second  term  by  giving  a  new  bond  and  taking  the  oath  of  office. 
Held,  his  sureties  for  the  first  year  were  liable  for  his  defaults 
committed  during  the  second  year,  on  the  ground  that  by  law  the 
constable  held  under  his  first  election,  till  his  successor  was 
elected  and  qualified,  and  his  sureties  were  liable  for  his  acts 
during  such  time.'  A  statute  provided  that  where  an  execution 
came  to  the  hands  of  a  constable,  and  his  term  of  office  afterwards 
expired,  he  should  proceed  the  same  as  if  his  office  had  not 
expired,  and  that  his  sureties  should  be  liable  for  all  money  so 
collected.  Held,  that  the  sureties  of  a  constable,  during  the  term 
in  which  he  received  an  execution,  were  liable  for  money  col- 
lected by  him  thereon  during  a  subsequent  term  for  which  he  had 
given  a  new  bond  with  different  sureties.  The  court  said  that 
but  for  the  statutory  provision,  the  sureties  on  the  second  bond 
would  have  been  liable.^  Accordingly  it  has  been  held  that  the 
sureties  on  a  sherifif's  bond,  are  liable  for  his  failure  to  pay  over 
money  received  by  him  in  his  official  capacity  during  the  term  of 
office  covered  by  their  bond,  although  the  money  arose  from  a 
partition  sale  made  by  him  during  a  previous  term  covered  by 
a  bond  with  different  sureties.^  By  statute  a  party  whose 
land  was  sold  on  execution,  had  the  right  to  redeem  it  within 
twelve  months,  by  paying  the  officer  who  made  the  sale  the 
amount  of  the  purchase  money.  A  sheriff",  after  the  expiration 
of  his  ofiice,  received  money  in  redemption  of  land  sold  by  him 
while  in  office.  Held,  the  receipt  of  the  money  was  part  of  the 
duties  of  the  sheriff*,  for  which  his  sureties  were  responsible.*  A 
sheriff  held  office  for  two  terms,  giving  different  sets  of  sureties 
for  each  term.  Held,  the  sureties  for  the  first  term  were  liable  for 
money  realized  from  a  sale  of  property  levied  on  during  the  first 
term  but  not  sold  till  the  second  term.'     But  if  the  sheriff  re- 

'  Butler  V.  The  State,  20  Ind.  169.  *  Elkin  v.  The  People,  3  Scam.  (111.) 

2  McCormick  v.  Moss,  41  111.  352.  207. 

2 Ingham's  Admrs.  v.  McCorabs,  17  ^Tyree  v.  Wilson,  9  Gratt.  (Va.)  59. 

Mo.  558.     See,  also,  on  this  subject, 
Warren  v.  The  State,  11  Mo.  583. 


596  SURETIES   OS   OFFICIAL    BONDS. 

ceives  tlie  execution  after  the  expiration  of  bis  term  of  office,  it 
has  been  held. that  bis  sureties  for  that  term  are  not  liable  for 
money  realized  from  sucb  execution,  even  though  no  successor 
of  tbe  sheriff  has  qualified  and  be  is  acting  as  slieriff  de  facto) 
Where  judgment  of  ouster  from  office  was  given  against  a  sberift', 
but  no  writ  of  discharge  was  issued,  and  afterwards  an  execution 
was  placed  in  bis  bands  on  whicb  be  made  tbe  money,  it  was  held 
that  bis  sureties  were  liable  for  sucb  money,  as  tbe  same  was  re- 
ceived by  bim  colore  officii  and  be  remained  de  facto  in  posses- 
sion of  the  office.^  So  it  has  been  held  that  the  sureties  of  a  con- 
stable are  liable  for  money  collected  by  bis  deputy,  after  the  con- 
stable has  forfeited  his  office  by  removal  from  tbe  state.^  But 
where  a  sheriff  was  actually  removed  from  office,  it  was  beld  that 
bis  sureties  were  not  liable  for  any  of  his  subsequent  acts.*  Tbe 
constitution  of  a  state  provided  that  a  sheriff  might  be  required 
to  renew  bis  bond  from  time  to  time,  and  in  default  of  bis  so  do- 
ing bis  office  should  be  deemed  vacant.  A  statute  provided  that 
he  should  renew  bis  bond  yearly,  but  did  not  expressly  say  bis 
office  should  be  vacant  if  be  did  not  so  renew  it.  A  sheriff  failed 
to  renew  bis  bond,  and  afterwards,  during  tbe  term  of  office  for 
whicb  be  was  elected,  male  default.  Held,  the  sureties  on  bis 
original  bond  were  liable  therefor,  as  he  remained  sheriff  ^^yrtc^c> 
by  virtue  of  bis  election.*  Tbe  sureties  of  a  sheriff  are  liable  for 
money  made  by  him  on  legal  process  during  bis  official  term,  al- 
though it  is  not  demanded  by  the  party  entitled  thereto  until 
after  the  expiration  of  sucb  term.  The  obligation  of  payment 
accrues  during  tbe  teim  of  office,  and  remains  after  the  expi- 
ration of  such  term." 

§  459.  Cases  holding  surety  of  officer  liable  for  his  acts  after 
expiration  of  his  official  term,  etc. — A  county  treasurer  did  not 
turn  over  bis  office  to  bis  successor  till  one  day  after  bis  term  of 
office  expired,  and  on  that  day,  after  the  expiration  of  his  office, 

'  Cuthbert  v.  Hugg-ins,  21  Ala.  349.  ^  Kent  v.  Mercer,  12  Up.  Can.  C.  P. 

To  the  effect  that  the  sureties  of  a  R.  30. 

Bheriff  who  has  an  execution  in  his  "  State  v.  Muir,  20  Mo.  303. 

hands  for  five  months  before  going  out  *  Dixon  v.  Caskey,  18  Ala.  97. 

of  ofiice,  but  makes  no  levy,  and  after  *I)unphy  v.  Whipple,  25  Mich.  10. 

going  out  of  office  receives  the  money,  «  King  v.  Nichols,   16  Ohio  St.  80; 

are  not  liable  for  such  money,  see  Mc-  Brobst  v.  Skillen,  16  Ohio  St.  382. 
Donald  v.   Bradshaw,   2   Kelly   (Oa.) 
248. 


ACTS   OF    OFFICEll    AFTER   TEEMINATION   OF    OFFICE.  597 

lie  received  certain  moneys  in  his  official  capacity.  Held,  the 
sureties  on  his  official  bond  were  liable  for  the  moneys  thus  re- 
ceived, on  the  ground  that  he  was  de  facto  the  treasurer,  and 
the  sureties  would  not  be  permitted  to  set  up  that  he  was  not 
treasurer  de  jure}  Where  a  commissioner  in  equity  after  he  had 
resigned  his  office,  and  before  a  successor  had  been  appointed, 
received  money  on  a  bond,  which  he  had  taken  as  commissioner, 
it  was  held  his  sureties  were  liable  for  the  money  thus  received.'' 
Where  the  money  and  property  of  an  infant  without  a  guardian 
was  ordered  by  a  decree  of  a  county  court  to  be  paid  over  to  a 
clerk  of  that  court,  to  be  by  him  in^'ested  and  managed  under 
the  direction  of  the  court,  and  for  the  use  of  the  infant,  and  the 
statute  provided  that  his  official  bond  should  be  liable  for  the  du- 
ties enjoined  by  the  court  in  relation  to  the  property,  it  was  held 
that  the  sureties  on  his  bond  when  the  order  was  made  were  li- 
able for  money  received  by  him  after  his  term  of  office  had  ex- 
pired, as  he  received  it  by  virtue  of  the  order  made  while  they 
M'ere  liable.^  Where  a  bond  was  given  by  the  agent  of  an  unincor- 
porated joint  stock  company  to  the  directors  fur  the  time  being, 
conditioned  for  the  faithful  performance  of  his  duties,  etc.,  and 
the  directors  were  appointed  annually,  and  changed  before  a 
breach  of  the  condition  of  the  bond,  tlie  agent  antt  his  sureties 
are  liable  in  an  action  brought  by  the  obligees  in  the  bond  for-  a 
breach  happening  after  such  obligees  went  out  of  office.  "  It  is 
true  the  directors  of  this  company  are  elected  annually,  but  the 
company  has  not  said  that  the  agent  shall  be  for  one  year  only; 
his  appointment  is  during  pleasure.  The  sureties  do  not  become 
sureties  in  consequence  of  their  confidence  in  the  directors,  but 
of  their  confidence  in  the  agent  whose  sureties  they  are,"  * 

§  460.  Cases  holding  surety  on  official  bond  not  liable  for 
acts  of  officer  after  expiration  of  his  term, — A  civil  officer  has  a 
right  at  any  time  to  resign  his  office,  and  after  his  resignation  has 
been  received  at  the  proper  department,  his  surety  is  not,  as  a 

'  Placer  Co.  r.  Dickerson,  45  Cal.  12.  holding  under  peculiar  circumstances 

^  State  V.   Bird,  2  Richardson  Law  that  the  bond  of  a  deputy  collector 

(So.  Car.)  99.  covered  acts  done  after  a  subsequent 

^  Latham  v.   Fagan,  6  Jones  Law  appointment    of    the    collector,     see 

(Nor.  Car.)  62.  Delacour  v.   Caulfield,    1   Irish  Com, 

^Anderson  v.  Longden,  1  Wheaton,  Law  R.  669. 
85,  per  Marshall,  C.  J.      For  a  case 


598  SURETIES    ON    OFFICIAL    BONDS. 

o-eneral  rule,  liable  for  any  of  his  subse:inent  acts.'     A  townsliip 
trustee  gave  bond  for  liis  acts  during  one  year,  and  till  bis  succes- 
sor should  be  elected  and  qualified.     His  successor  was  elected 
and  qualified,  and  the  next  day  the  old  trustee  borrowed  money 
on  the  credit  of  the  township:   Held,  his  sureties  were  not  liable 
therefor.     He  was  then  neither  an  officer  de  facto  nor  de  ^jure?' 
So  it  has  been  held  that  the  sureties  on  the  official  bond  of  the 
trustee  of  the   jury  fund  are  not  liable  for  money  received  by 
him  after  the  expiration  of  his  term  of  office,  even  though  he  is 
still  holding  the  office  when  he  receives  the  money.^     The  bond 
of  an  auctioneer  provided  that  he  should  perform  his  duty  to  all 
persons  who  should  employ  him  as  such  "  during  his  continuance 
in  office."    He  received  goods  and  advertised  them  for  sale  during 
his  official  term,  and  sold  them  in  pursuance  of  the  notice  the  day 
after  his  term  expired:  Held,  his  sureties  were  not  liable  for  the 
proceeds  of  the  sale.^     A  constable's  official  term  being  a  year,  a 
note  was  put  into  his  hands  in  the  year  1823,  and  he  received  the 
money  due  on  it  in  1825:    Held,  his  sureties  for  1823  were  not 
liable  for  the  money  so  received.^     Where  money  was  paid  to  the 
deputy  of  a  clerk  and  master  in  chancery  after  the  term  of  such 
clerk  and  master  had  expired,  but  while  he  was    still  filling  the 
office  without  any  new  appointment  or  new  bond,  it  was  held  that 
the  sureties  on  the  official  bond  of  such  clerk  and  master  Avere 
not  liable  for  the  money  so  paid.*     The  sureties  on  the  official 
bond  of  a  school  district  collector  have  been  held  not  liable  for 
his  refusal  to  pay  over,  upon  order  of  the  district  trustees,  moneys 
received  during  a  term  of  office  which  had  expired  at  the  time  the 
order  was  made,  and  with  respect  to  which  expired  term  the  bond 
was  given;  the  reason  being  that  the  default  did  not  occur  during 
the  term  for  which  the  sureties  were  liable.''     A  county  treasurer 
was  elected  for  two  years,  and  gave  bond  with  siireties  for  the 
performance  of  his  duties  during  the  period  for  which  he  was 
elected,  and  until  the  election  and  qualification  of  his  successor. 
Before  the  expiration  of  the  term  it  was  extended  by  the  legisla- 

'  United  States  v.   Wright,    1   Mc-  *  Florance  i;.  Richardson,  2  La.  An. 

Lean,  509.  G63. 

"•'Steinback  v.  Tho   State,  38    Ind.  ^Governor  v.  Coljle,    2  Dev.    Law 

483.  (Nor.  Car.)  489. 

"Offutt  r.  Commonwealth,  10  Bush  '^Hollomanr.  Langdon,  7  Jones  Law 

(Ky.)212.  (Nov.  Car.)  49. 

'Overacre  r.  Garrett,  5  Lansing  (N.  Y.)  156. 


KEW    BOND    GIVEN    UNDER    EEQUIEEMENT   OF    STATUTE.         599 

ture  for  about  three  mouths,  and  no  new  bond  was  given  bj  the 
treasurer:  Held,  the  sureties  were  not  responsible  for  the  official 
conduct  of  the  treasurer  during  the  time  for  which  the  term  was 
extended.  The  legislature  had  no  power  to  extend  their  liability 
beyond  the  precise  terms  of  their  contract,  and  the  words  of  the 
bond  must  be  understood  to  refer  to  the  law  as  it  was  when  the 
obligation  was  entered  into.^ 

§  461.  When  surety  on  old  bond  of  ofiBcer  discharged  if  under 
requirement  of  statute  he  give  new  bond. — Where  a  statute  pro- 
vides that  an  officer  wdio  has  already  given  bond  and  is  exercising 
an  office,  may  be  required  to  give  a  new  bond,  but  does  not  make 
provision  for  the  discharge  of  the  sureties  on  the  old  bond,  the 
giving  of  such  new  bond  does  not,  as  a  general  rule,  discharge  the 
sureties  on  the  old  bond."  Where,  in  such  case,  such  second  bond 
is#  given,  the  sureties  thereon  may  be  sued  for  a  default  of  the 
principal  before  any  suit  is  brought  against  the  sureties  on  the 
first  bond.'  The  curator  of  an  estate  having  given  bond,  com- 
mitted a  default  and  was  afterwards  ruled  to  give,  and  gave,  a 
new  bond  with  different  sureties;  the  effect  of  which  new  bond 
w-as,  by  statute,  to  discharge  the  first  sureties  from  all  future,  but 
no  past,  liability.  The  curator  carried  the  amount  of  the  defal- 
cation into  his  accounts,  after  giving  the  new  bond,  so  as  to  ren- 
der the  sureties  thereon  liable  for  the  same,  and  judgment  w^as 
had  against  them  therefoi*.  Held,  the  sureties  on  the  first  bond 
were  lial)le  for  all  defaults  of  the  curator  which  were  actually 
committed  while  tliej^  were  sureties,  even  though  judgment  for 
the  same  default  had  been  recovered  against  the  sureties  on  the 
second  bond.^  A  statute  provided  that  if  the  surety  of  a  guar- 
dian desired  to  be  released,  he  should  take  certain  steps,  and  "  if 
a  guardian  shall  give  new  bond,  when  ru  ed  to  do  so  by  the 
court,  his  former  security  shall  not  be  bound  for  any  act  of  his 
thereafter."  Upon  proper  proceedings,  the  county  court  ordered 
a  surety   on    a   guardian's    bond   to   be   discharged   "from    all 

'  Brown  v.  Lattimore,  17  Cal.  93.  (Nor.  Car.)  115;  and  with  reference  to 

^  People  V.   Curry,   59   111.  35,  with  bond  of  testamentary  trustee,    Com- 

reference  to  bond  of   administrator.  monwealth  v.  Risdon,  8  Philadelphia, 

To  similar  effect,    with  reference  to  Pa.  23;   see,  also,  Wood  v.  Williams, 

bond  of  guardian,  see  Hutchcraft  i\  61  Mo.  63. 

Shrout,  1  T.  B.  Mon.  (Ky.)  206;  Com-  spin^staff  v.  The  People.  59  111.  148. 

monwealth  v.  Cox's  Admr.  86  Pa.  St.  "State  v.  Drury,  36  Mo.  281. 

442;    Jones  v.  Blanton,   6  Ired.   Eq. 


coo  SUKETIES    ON    OFFICIAL   BONDS. 

loss  and  damage,"  a  new  bond  being  executed.  Held, 
the  surety  was  discharged  from  all  liability  on  account  of 
wliat  had  before  occurred,  as  well  as  of  what  might  thereafter 
occur.'  Under  a  similar  statute  it  has  been  held,  that  the  surety 
was  discharged  by  the  mere  tact  of  the  new  bond  being  given 
without  any  order  of  court  discharging  him,"  A  statute  provided 
that  tlie  sureties  of  a  justice  of  the  peace  might  give  notice  that 
they  were  no  longer  willing  to  be  bound  for  him,  and  that  if  lie 
should  give  other  security  "  to  the  satisfaction  of  the  trustees," 
his  first  sureties  should  be  discharged.  Such  a  notice  having 
been  given  by  the  first  sureties  of  a  justice,  he  procured  other 
persons  to  subscribe  their  names  to  his  official  bond,  but  no  seals 
were  attached  to  their  names,  nor  were  such  names  contained  in 
the  body  of  the  bond.  Held,  the  first  sureties  were  not  dis- 
charged. "No  other  security  was  given;  none  at  all." ^  Part'of 
the  sureties  on  the  ofiicial  bond  of  a  county  treasurer  applied  for 
and  obtained  a  discharge  from  liability  as  such  sureties  under  a 
statute  making  provision  therefor,  and  the  treasurer  gave  a  new 
bond.  A  default  occurred  after  the  discharge  of  the  sureties 
aforesaid,  and  it  was  held  that  the  remaining  sureties  on  the  first 
bond  were  not  liable  therefor.  The  court  said  that  the  discharge 
of  any  one  of  the  sureties  so  altered  the  contract  as  to  discharge 
all  the  others.^  Where  a  statute  provides  that  sureties  on  an 
ofiicial  bond  may  be  discharged  by  proceedings  before  certain 
persons,  the  proceedings  must  be  had  before  the  persons  who,  at 
the  time  of  the  proceedings,  have  the  right  to  grant  such  dis- 
charge, and  not  before  the  persons  who  had  the  power  to  grant 
the  discharge  when  the  bond  was  given,  if  sucb  persons  have 
been  changed  in  the  meantime.^ 

§  462.      Liability   of  surety   on   second   bond  for  same  term  of 
officer. — When   an   oificer  during  his  term   gives  an  additional 

'  Watts  V.  Pettit,  1  Bush  (Ky.)  154;  is  the  same,  may  be  sued  together  in 

Moore  v.  Potter,  9  Bush  (Ky.)  357.  the  same  suit,  see  Powell  v.  Powell,  48 

*  Lane  v.  The  State,  27  Ind.  108;  see,  Cal.  234.    Holding  that  where  several 

also,  on  this  subject.  United  States  v.  sureties  sign  an  official    bond,    each 

Warden,  5  Mason,  82.  binding  himself  "  severally  for  the  sum 

^Stevens?-.  Alhuen,  19  Ohio  St.  485,  and  the  sum  alone  "  set  opposite  his 

per  BrinkerhoflF,  C.  .T.  485.  name,  a  joint  action  cannot  be  main- 

^  People  V.  Buster,  11  Cal.  215.  tained  against  them  for  the  amount  of 

'  People  V.  Evans,  29  Cal.  429.  Hold-  the  bond,  see  State  v.  Powers,  52  Miss. 

ing  that  sureties  on  diflierent  bonds  of  198. 
an  administrator,  when  their  liability 


MONEY  EECEIVED  BY  PKINCIPAL  BEFOEE  SUEETY  SIGNED.        GOl 

bond  in  pursuance  of  the  requirements  of  a  statute  or  otherwise, 
whether  the  sureties  in  tlie  last  bond  are  liable  for  any  default 
happening  before  the  time  they  signed,  often  becomes  an  impor- 
tant question.  Where  a  statute  provided  that  upon  application 
by  the  sureties  of  an  administrator  he  might  be  required  to  ex- 
ecute "  a  further  bond  for  the  performance  of  the  condition  of 
the  former  bond,"  and  such  a  bond  was  given  with  such  a  condi- 
tion, it  was  held  that  the  surety  on  such  last  bond  was  liable  for 
all  deftiults  of  the  guardian  occurring  both  before  and  after  the 
execution  of  such  last  bond.'  But  where  under  the  same  statute 
a  new  bond  was  given  by  an  executrix,  conditioned  that  she 
would  "well  and  truly  and  faithfully  perform  the  duties  and 
trusts  committed  to  her  as  executrix,"  it  was  held  that  the  surety 
in  such  new  bond  was  only  liable  for  subsequent  defaults  of  the 
executrix.^  Where  a  guardian  was  ordered  by  the  probate  court 
to  give  supplemental  securitj^  and  a  new  surety,  in  pursuance  of 
such  order  signed  the  old  bond  of  the  guardians,  it  was  held  that 
he  thereby  became  liable  for  all  acts  of  the  guardian  from  the 
time  the  bond  was  first  executed.^  A  sheriff  collected  money  on 
execution,  and  renewed  his  bond  before  the  money  was  demand- 
ed of  him.  The  condition  of  the  bond  provided  that  the  sher- 
iff should  "  well  and  truly  perform  all  and  singular  the  duties  of 
sheriff,  as  enjoined  on  him  by  the  laws  of  *  .  (the)  state, 
and  pay  over  all  moneys  collected  by  him  by  virtue  of  his  ofiice 
as  required  by  law."  Held,  that  if  the  sheriff  appropriated  the 
money  to  his  own  use  after  the  making  of  the  last  bond,  the 
sureties  thereon  were  liable  for  such  money.*  A  justice  of  the 
peace  collected  money  by  virtue  of  his  office,  and  was  afterwards 
elected  his  own  successor,  and  gave  a  new  bond.  Afterwards  the 
sureties  on  his  new  bond  applied  to  be  discharged,  and  they  vieve 
ordered  so  to  be  upon  a  new  bond  being  given,  which  was  done, 
conditioned  to  pay  all  money  that  might  come  into  the  hands  of 
the  justice  "by  virtue  of  liis  office."  Held,  the  sureties  on  this 
last  bond  were  not  liable  for  the  money  so  collected." 

1  Armstrong  v.  The  State,  7  Blackf.  ^xhe  State  v.  Hood,  7  Blackf.  (Ind.) 

(Ind.)81.     To  similar  effect,  see  Steele  127. 

V.  Reese,  6  Yerg-.  (Tenn.)  2C3;  Treas-  ^  Emmons  v.  The  People,  11  111.  6. 

urers  v.  Taylor,  2  Bailey  Law  (So.  Car.)  *The  Governor  v.  Robbing,  7  Ala. 

524.      See,   also,    Enicks  v.  Powell,   2  79. 

Strobh.  Eq.  (So.  Car.)  196.  ^Thompson  v.  Dickerson,  22  Iowa, 

360. 


602  SURETIES    ON   OFFICIAL    BONDS. 

§  403.  Liability  of  sureties  on  different  bonds  of  same  ofiEcer 
for  same  term. — A  postmaster  gave  a  bond  conditioned  for  his 
good  behavior  in  office,  and  while  still  in  office  gave  another  bond, 
with  other  sureties,  but  with  the  same  condition  as  the  first,  and 
afterwards  continued  in  the  office.  Held,  tliat  giving  the  second 
bond  did  not  release  the  sureties  in  the  first,  but  the  sureties  in 
both  bonds  were  equally  liable  for  all  defaults  of  the  principal 
occurring  after  the  second  bond  was  given.'  The  sureties  on  the 
second  bond  of  an  officer  may  lawfully  stipulate  in  the  instrument 
that  they  shall  not  be  liable  until  all  the  remedies  on  the  first 
bond  are  exhausted.'  In  June,  1854,  H  was  elected  sergeant  of 
a  city  for  three  years,  and  gave  bond  with  sureties  in  the  sum  of 
$30,000,  conditioned  that  he  should  faithfully  "discharge  the  du- 
ties of  his  said  office."  Afterwards,  as  the  law  permitted,  he  was 
in  1855  required  to  give  a  new  bond,  and  did  so  in  the  sum  of 
$60,000,  with  other  sureties,  both  bonds  having  the  same  condi- 
tion. Twenty  days  before  the  last  bond  was  given,  the  sei-geant 
received  money  which  he  did  not  pay  over.  Held,  the  sureties 
in  both  bonds  were  equally  liable  for  his  default,  the  breach  of 
the  bonds  consisting  not  in  receiving  the  money,  but  in  failing  to 
pay  it  over.^  The  treasurer  of  a  collectorate  was  found  to  have 
been  a  party  with  others  in  embezzling  government  moneys  in 
his  collectorate,  the  defalcations  extending  over  several  years.  A 
bond  with  surety  had  been  given  for  the  collector's  acts,  and  three 
renewal  bonds  had  been  signed  by  the  same  surety  during  the 
period  the  treasurer  was  in  office,  but  the  surety  did  not  ask  that 
the  old  bonds  should  be  delivered  up  to  him  when  the  renewal 
bonds  were  given.  Held,  the  renewal  bonds  did  not  discharge 
the  surety  from  his  liability  under  the  first  bond.*  It  has  been 
held  that  the  sureties  on  the  general  bond  of  a  county  treasurer 
are  not  liable  for  his  i'ailure  to  j)ay  over  moneys  collected  by  him 
on  account  of  school  and  university  lands,  where  there  is  a  statute 
requiring  a  special  bond  with  reference  to  such  lands,  and  such  a 

1  Postmaster  General  v.  Munger,  2  Glenn  v.  Wallace,  4  Strob.  Eq.  (So. 
Paine,  189.  Car.)  149. 

2  Harrison  v.  Lane,  5  Leigli  (Va.)  ^  Corprew  v.  Boyle,  24  Gratt.  (Va.) 
414.    To  the  effect  that  the  court  may  284. 

require  a  new  bond,  which,  as  between  ^  Lalla  Bunseeclhur  v.  The  Bengal 

the  sureties  thereon  and  the  sureties  on  Government,  14  Moore's  Indian  Ap- 

an  old  bond  of  the  same  administra-  pis.  86. 
tor,  shall  be  the  primary  security,  see 


WHEN    OFFICEK    HOLDS    FOK    SEVERAL    TERMS.  603 

bond  is  given.*  It  lias  been  held  that  the  sureties  on  a  guardian's 
general  hond,  and  on  a  bond  given  by  hira  npon  sale  of  the  ward's 
real  estate,  are  all  liable  for  the  proceeds  of  such  sale.  The  latter 
are  liable  because  they  expressly  agreed  to  become  so,  the  former 
because  when  the  money  was  realized  it  became  the  personal  es- 
tate of  the  ward,  which  their  bond  covered.'^ 

§  464.  When  officer  holds  for  several  terms,  surety  during 
time  when  default  occurs  liable. — When  an  office  has  been  held 
by  the  same  person  for  two  or  more  terms  with  different  sets  of 
sureties  for  each  term,  and  a  defalcation  or  dereliction  of  duty 
occurs  on  the  part  of  the  officer,  as  a  general  rule  those  sureties 
only  will  be  liable  who  were  bound  for  his  acts  at  the  time  such 
defalcation  or  dereliction  of  duty  occurred.  Thus,  a  master  in 
chancery  was  elected  four  times  successively,  and  gave  bonds 
each  time  with  different  sureties.  Held,  that  where  he  was 
ordered  by  the  court  to  invest  funds  in  his  hands  and  neglected 
to  do  so,  the  sureties  then  liable  were  responsible  for  his  neglect. 
So,  where  he  failed  to  deposit  in  bank  as  ordered  by  the  court, 
his  sureties  for  that  term  were  liable.^  A  party  was  elected 
county  treasurer  for  two  years  and  gave  bond  as  such.  He  was 
re-elected  to  the  same  office  for  the  two  years  next  following,  and 
continued  in  the  office,  but  did  not  qualify  or  give  a  new  bond. 
Held,  the  responsibility  of  the  sureties  ceased  at  the  end  of  the 
first  term.'*  A  party  was  collector  of  taxes  for  the  year  1854,  and 
also  for  the  years  1855  and  1856,  and  gave  bonds  with  different 
sureties  for  each  year.  He  appropriated  to  his  own  use,  and  never 
accounted  for,  j)art  of  the  money  collected  for  1854.  In  1857 
the  town  authorities  appropriated  from  money  received  on  the 
assessments  of  1855  and  1856  a  sum  to  make  up  the  defalcations 
of  1854,  and  the  sureties  for  1854  being  sued  for  the  default,  set 
up  the  above  facts  as  a  defense.     Held,  they  were  no  defense,  and 

'  State  V.  Young,  23  Minn.  551.  (So.  Car.)  227.  Holding-  that  the  sure- 
-  Elberfc  v.  Jacoby,  8  Bush  (Ky.)  542.  ties  on  a  sheriff's  bond  when  he  re- 
Holding,  under  peculiar  circumstances,  ceives  money  are  liable  for  such  money, 
the  sureties  of  a  school  commissioner  although  the  property  from  the  sale  of 
liable  for  money  in  the  hands  of  their  which  it  was  realized  was  sold  during 
principal  during  the  period  covered  by  a  previous  term,  see  State  v.  McCor- 
Iheir  bond,  where  several  bonds  have  mack,  50  Mo.  568. 
been  given  during  the  principal's  term,  ■*  County  of  Wapello  v.  Bingham, 
see  Miller  r.  County  of  Macoupin,  2  10  Iowa,  39.  To  similar  effect,  see 
Oilman  (111.)  50.  People  v.  Aikenliead,  5  Cal.  106. 
^Street  v.  Laurens,  5  Richardson Eq. 


604:  SURETIES    OX    OFFICI.U.    BOXDS. 

the  appropi'iution  so  made  did  not  discharge  sucli  sureties  and 
throw  the  burden  on  the  sureties  for  other  years. ^ 

§  4G5.  When  bill  of  discoverj'-  to  ascertain  time  of  defalca- 
tion may  be  brought  against  principal  and  different  sets  of  sure- 
ties.—  When  a  guardian  is  charged  hy  his  ward  with  having  been 
guilty  of  a  misuse  of  the  ward's  funds,  and  lie  has  given  diiferent 
bonds  during  liis  guardianship,  with  additional  or  different  sure- 
ties, a  suit  in  chancery  will  be  sustained  against  the  guardian, 
and  the  different  sets  of  sureties  for  a  discovery  of  the  amount 
of  the  funds  misused,  and  the  time  when  the  misuse  occurred,  in 
order  to  charge  each  set  of  sureties  according  to  their  respecti\'e 
liabilities  on  the  bonds  signed  by  them.  But  in  order  to  give 
equity  jurisdiction,  the  bill  must  charge  the  total  or  partial  in- 
solvency of  the  .guardian.^ 

§  4:GG.  When  surety  on  bond  for  second  term  of  oiScer  liable 
for  money  received  by  him  during  first  term. — ^ Where  an  officer 
has  held  an  office  for  two  or  more  successive  terms,  and  has  given 
bonds  for  each  with  different  sets  of  sureties,  if  money  received 
by  the  officer  was  received  by  him  "  prior  to  the  execution  of  the 
bond  on  whicli  the  suit  is  brought,  and  the  money  has  been  used 
by  the  principal  to  his  own  use,  or  so  disposed  of  by  him  that  lie 
does  not  have  it  on  hand,  either  in  bank  or  otherwise,  this  con- 
stitutes a  dereliction  of  duty,  and  *  for  such  dereliction  the 
sureties  on  his  official  bond  subsequently  executed  are  not  liable, 
unless  the  bond  is  retrospective  in  its  language,  so  as  to  include 
prior  derelictions  of  duty.  On  the  other  hand,  where  a  public 
officer  having  received  public  moneys  prior  to  the  execution  of  his 
official  bond,  still  has  such  moneys  on  hand  when  the  bond  is  exe- 
cuted, the  sureties  thereon  become  responsible  for  the  proper  dis- 
position "  of  such  moneys.^     Where  the  official  bond  of  a  clerk  of 

'Porter  r.  Stanley,  47  Me.  515.  ^Independent  School  District  of 
Hokling  that  the  surety  on  the  general  Montezuma  v.  jMcDonald,  39  Iowa,  5G4, 
bond  of  a  deputy  assessor  is  liable  for  per  Miller,  C.  J.;  State  v.  Sooy,  39 
his  acts  after  his  reappointment,  when  New  Jer.  Law  (10  Vroom)  539;  Bissell 
he  would  have  continued  to  hold  the  v.  Saxton,  66  New  York,  55;  Freehold- 
office  without  any  new  appointment,  ers  of  Warren  v.  Wilson,  1  Harrison 
see  Kruttschnitt  v.  Hauck,  6  Nevada,  (N.  J.)  110;  Pinkstaff  v.  The  People, 
163.'  59  111.  148;  Miller  v.  Moore,  3  Humph. 

'McDougaldr.  Maddox,  32  Ga.  63.  (Tenn.)  189;    Bales  v.  The   State,  15 

To  a  similar  effect,     see  Woods    v,  Ind.  321;    Rochester  v.   Piandall,  105 

Woods,  7  6a.  687;  Alexander  v.  Mer-  Mass.  295. 
cer,  7  Ga.  549. 


WHEN  SURETY  FOE  LAST  TEKM  LIABLE  FOE  PEEVIOUS  DEFALCATION.  CO  5 

the  county  board  of  supervisors,  for  liis  second  successive  term, 
was  conditioned  that  he  should  "faithfully  perform  all  the  duties 
of  said  office,  and  '"  pay  over  all  moneys  that  "  (might) 
come  into  his  hands  as  such  clerk  as  required  by  law,"  it  was 
held  that  the  sureties  on  such  bond  were  liable  for  money  received 
by  the  clerk  during  his  first  term,  and  actually  in  his  hands  when 
his  second  term  commenced,  and  which  he,  therefore,  received  as 
his  own  successor,  but  they  were  not  liable  for  money  received 
by  him  during  his  first  term,  and  misapplied  or  embezzled  by 
him  during  his  first  term.-^  Wliere  a  sheriff  received  an  execu- 
tion during  his  first  tei*m,  but  failed  to  return  it,  as  provided  by 
law,  and  such  failure  occurred  during  his  second  term,  it  was  held 
that  the  sureties  for  his  second  term  were  liable  for  this  default, 
because  it  occurred  during  the  term  for  which  they  were  bound." 
A  master  in  chancery,  while  a  certain  set  of  sureties  were  liable, 
used  money  belonging  to  his  office  in  speculation.  Afterwards, 
and  after  the  liability  of  the  sureties  as  to  future  defaults  had 
ceased,  the  master  received  the  amoimt  back  in  money  and  good 
notes,  but  it  did  not  appear  that  he  placed  it  in  the  fund  from 
which  he  took  it.  Held,  the  sureties  were  liable  for  the  full 
amount,  as  the  breach  of  the  bond  consisted  in  using  the  money, 
and  there  was  nothins:  to  mitigate  the  damages.^  Where  taxes 
were  received  by  a  collector  during  his  first  term,  and  he  failed 
to  make  a  report  of  his  acts  and  settle  with  the  authorities  when 
required  by  law,  before  the  expiration  of  his  term,  and  he  was  re- 
elected and  gave  a  new  bond,  it  was  contended  that  it  would  be 
presumed  he  paid  over  the  funds  to  himself  as  his  own  successor, 
and  that  the  sureties  on  his  second  bond  only  Avere  liable.  Held, 
the  sureties  on  the  first  bond  were  liable,  because  the  collector  had 
failed  in  the  statutory  requirement  to  make  a  report  of  his  acts 
and  settle  with  the  authorities  during  the  term  for  which  they 
were  bound." 

§  467.  "When  surety  for  last  term  of  officer  liable  for  pre- 
vious defalcation — Presumptions,  evidence,  etc. — A  supervisor 
was  elected  for  a  second  term,  and  at  the  end  of   his  first  term 

"Vivian  v.   Otis,  24  Wis.  518.     To  ^Sherrell    r.   Gooarum,   3  Humph, 

similar  effect,  see  Townsencl  v.  Ever-  (Tenn.)  419. 

ett,  4  Ala.  607;  Dumas  v.  Patterson,  9  ^  White  v.  Smith,  2  Jones  Law(Xor. 

Ala.  484.     To  a  contrary  effect,   see  Car.)  4. 

Newman  v.  Metcalfe  Co.  Ct.  4  Bush         « Coons  v.  The  People,  76  111.  383. 
(Ky.)  67. 


GOG  SURETIES   ON    OFFICIAL    BONDS. 

made  a  report,  showing  a  certain  amount  in  his  hands  belonging 
to  the  town,  which  report  was  approved.  Held,  the  sureties  in 
his  second  bond  were  liable,  even  though  the  default  for  which 
they  were  sued  had  actually  occurred  during  his  first  term.  The 
supervisor's  annual  report  being  ap]3 roved,  must  bo  presumed  to 
be  true.  The  sureties  in  the  second  bond  must  be  presumed  to 
have  had  knowledge  of  the  report  when  thev  became  liable,  and 
the  monej'  was  at  that  time  in  contemplation  of  law,  in  the  hands 
of  the  supervisor.'  Where  a  commissioner  in  equity,  who  was 
re-elected,  had  during  his  first  term,  received  moneys  which  had 
not  been  demanded  or  ordered  to  be  paid  over  or  invested  during 
that  term,  it  was  held  that  the  sureties  on  the  bond  for  his  first 
term  were  not  liable  for  such  money,  unless  it  was  shown  that 
the  commissioner  had  converted  the  funds  during  his  first  term, 
and  that  in  the  absence  of  such  proof  the  presumption  was  that 
he  retained  the  funds,  and  that  they  were  in  his  hands  as  his  own 
successor,  when  his  second  term  commenced.*  Where  there  were 
two  consecutive  commissions  to  an  Indian  agent,  and  a  different 
set  of  sureties  for  each  term,  it  was  held  the  last  set  of  sureties 
were  responsible  for  all  money  which  remained  in  the  hands  of 
the  principal  at  the  exj^iration  of  the  first  commission.  If  it  was 
misapplied  during  the  first  term  of  office,  the  burden  was  on  the 
second  set  of  sureties  to  show  that  fact.'  Where  an  officer  has 
held  office  for  several  terms,  and  been  guilty  of  a  defalcation,  it 
has  been  held  that  in  the  absence  of  all  evidence  as  to  when  the 
defalcation  occurred,  it  would  be  presumed  that  it  occurred  dur- 
ing his  last  term.^ 

§  4G8.  Liability  of  surety  when  principal  pays  defalcation 
of  one  term  with  money  received  during  another  term. — Where 
the  same  person  was  collector  of  taxes  for  two  successive  years, 
and  j^aid  the  arrears  of  taxes  collected  on  the  tax  list  of  the  first 
year  with  the  money  collected  on  the  tax  list  of  the  second  year 

^Morley  v.  Town  of  Metamora,  78  ^Vau^hanw.  Evans,  1  Hill  Eq.  (So. 

111.  394.  Tliis  case  seems  to  be  opposed  Car.)  414. 

in  principle  to  the  decided  weight  of  ^  Bruce  v.  United  States,  17  Howard 

authority  on  the  subject,  as  will  ap-  (U.  S.)  437.    To  contrary  effect,    sec 

pear  from  cases  cited  elsewhere  in  this  Justices  u.  Woods,  1   Kelly  (Ga.)  84; 

chapter,  and  in  the  chapter  on  Evi-  Bryant  v.  Owen,  1  Kelly  (Ga.)  355. 

dence.     See,  also,  on  this  subject,  Bey-  ■*  Kelly  v.  The  State,  25  Ohio  St.  567. 

erle  v.  Hain,  61  Pa.  St.  226.  To  similar  effect,  see  Kagyi'.  Trustees, 

etc.  68  111.  75. 


PAYING  DEFALCATION  WITH  MONET  OF  ANOTHEE  TERM.         607 

(the  authorities  not  knowing  whence  the  money  came),  and  failed 
to  perform  the  condition  of  his  official  bond  for  the  second  year, 
it  was  held  that  the  sureties  on  this  bond  were  liable  to  the  ex- 
tent of  the  default,  and  were  not  entitled  to  deduct  the  amount 
so  paid  by  him  out  of  the  proceeds  of  his  second  terra  to  the  pay- 
ment of  the  defalcation  of  the  first  term.  It  was  the  same  as  if 
the  collector  had  paid  out  the  money  collected  during  his  second 
term  for  any  of  his  private  debts/  One  became  surety  for  tlie 
good  conduct  of  the  cashier  of  a  bank  upon  his  reappointment 
to  that  office.  Before  such  reap]3ointment  he  had  been  guilty  of 
frauds  on  the  bank.  Afterwards,  and  previous  to  an  examination 
by  the  directors  of  the  bank  into  the  state  of  their  cash,  he  bor- 
rowed money  as  such  cashier,  which  he  ]3laced  in  the  bank,  and 
thus  concealed  his  prior  defalcations.  After  such  examination, 
he  took  out  the  said  moneys  and  repaid  those  from  whom  he  had 
borrowed  them.  Held,  the  surety  on  the  last  bond  was  liable  for 
the  default.  When  the  moneys  borrowed  were  placed  in  the 
vaults  of  the  bank  they  became  its  property,  and  a  subsequent 
paying  of  the  persons  from  whom  the  moneys  were  borrowed  out 
of  the  funds  of  the  bank  was  a  breach  of  the  bond  then  in  force.'' 
A,  being  township  collector  for  1872,  received  $5,000,  school 
money,  which  he  did  not  pay  over.  He  was  also  collector  in 
1873,  and  was  as  such  entitled  to  receive  $5,000  for  schools  for 
the  county  from  B,  the  county  collector.  A  and  B  met,  and  B 
gave  A  his  check  for  $5,000,  and  A  gave  B  his  check  for  the 
$5,000  due  for  1872,  but  with  the  understanding  that  A's  check 
should  not  be  presented  for  payment  until  A  had  time  to  deposit 
B's  check.  Held,  that  if  the  money  collected  in  1872  was 
actually  squandered  by  A  in  1872,  his  sureties  for  that  year  were 
responsible  for  it,  and  the  burden  could  not  be  thrown  on  the 
sureties  for  1873  by  any  such  contrivance.  The  court  said: 
"  Sureties  for  the  fidelity  of  a  person  in  an  office  of  limited  dura- 
tion, are  not  liable  beyond  that  period,  nor  are  they  liable  for  past 
defaults  unless  made  so  in  terms."  ^  "Where  a  city  treasurer  had 
lield  office  for  several  terms,  and  during  a  former  term  made 
false  entries  of  payments,  which  payments  he  actually  made  from 

'  Inhabitants  (jf  Colerain  v.  Bell,  9  ^pg^f^^gj-gonofs.  Inhabitants  of  Town- 

Met.  (Mass.)  499;  Gwynne  v.  Burnell,  ship  of  Freehold,  38  New  Jer.  Law, 
7  Clark  &  Finnelly,  572.  255,  per  Van  Syckel.  J. 

°  Ingraham  v.  Marine  Bank,  13  Mass. 
208. 


G08  SUEETIES   ON    OFFICIAL    BONDS. 

city  inoncy  during  liis  last  term,  it  was  held  that  tne  sureties  on 
the  bond  for  his  last  term  were  not  liable  for  the  sums  thus  paid 
out  by  liim.  The  court  said  that  the  sureties  on  an  official  bond 
were  only  liable  for  the  defaults  of  their  principal  occurring 
during  the  term  for  which  their  bond  was  given,  and  they  could 
not  be  prejudiced  by  the  false  entries  of  their  principal  made 
during  a  previous  term/  A  township  treasurer  who  was  elected 
for  a  second  year,  had  been  guilty  of  a  default  during  his  first 
term,  which  was  not  known  when  he  was  re-elected.  During  his 
second  term  he  paid  out  all  the  money  he  then  received,  and  more. 
It  was  contended  that  the  town  had  the  right  to  apply  the  money 
23aid  out  during  tlie  second  term  to  the  oldest  default,  and  hold 
the  sureties  for  the  second  term  liable.  Held,  this  could  not  be 
done,  and  the  sureties  who  were  bound  when  the  default  actually 
occurred  were  liable  therefor.^ 

§  469.  "When  sureties  of  ofncer  liable  for  duties  afterwards 
imposed  upon  him — Change  of  duties,  etc. — As  a  general  rule, 
the  sureties  on  an  official  bond  are  liable  for  the  faithful  per- 
formance of  all  duties  imposed  upon  such  officer,  whether  by 
laws  enacted  previous  or  subsequent  to  the  execution  of  the  bond, 
which  properly  belonged  to  and  come  within  the  scope  of  the 
particular  office.  They  are  not,  however,  liable  for  after  imposed 
duties,  which  cannot  be  j^resumed  to  have  entered  into  the  con- 
templation of  the  parties  at  the  time  the  bond  was  executed.^  A 
commissioner  for  the  loan  of  money  of  the  United  States,  de- 
posited with  the  state  of  E"ew  York,  under  the  act  of  1837, 
gave  bond,  with  sureties,  for  the  performance  of  his  duties. 
Afterwards,  and  dui-ing  his  continuance  in  office,  the  fund  in  his 
hands  was,  by  act  of  the  legislature,  increased  $500,  by  the 
transfer  of  another  fund  to  it.  He  afterwards  became  a  defaulter. 
Held,  his  sureties  were  not  discharged  by  such  increase.  Tlie 
court  said :  "  The  legislature  have  power  at  any  and  all  times  to 
change  the  duties  of  officers,  and  the  continued  existence  of  this 
power  is  known  to  the  officer  and  his  sureties,  and  the  officer  ac- 

^  Detroit  v.  Weber,  29  Mich.  24.  County,    59  111.  412.      Holding,  that 

^  Paw  Paw  V.    Eggleston,  25  Mich.  changing    the    time    of   holding  the 

36.  court  in  which  judgment  may  be  got 

^Governor  ?;.  Ridgway,    12  III.   14;  for    taxes,     does    not   discharge    the 

Sldllett  f.  Fletcher;  Compher  v.   The  sheriff;    see  People  r.   McHatton,    2 

People,    12  111.  290;    The  People  v.  Gilman  (111.)  731.     See,  also,  People 

Tompkins,  74  111.  482;  Smith  v.  Peoria  v.  Blackford,  16  111.  166. 


LIABILITY   FOR   AFTER   IMPOSED   DUTIES.  600 

cepts  the  office,  and  the  sureties  execute  the  bond  with  tliis 
knowledge.  It  is,  I  tliink,  the  same  in  effect  as  though  the 
power  was  recited  in  the  bond."  The  sureties  are  not  discharged 
by  the  alteration  of  the  duties  of  the  officer  "so  long  as  the  du- 
ties required  are  the  appropriate  functions  of  the  particular  offi- 
cer." All  such  alterations  are  within  the  contemplation  of  the 
parties  executing  the  bond.  Imposing  on  the  officer  duties  of 
another  description,  and  not  appropriate  to  the  office,  not  being 
a  matter  within  the  contemplation  of  the  sureties,  w^ould  dis- 
charge them.^  Where,  after  a  constable's  official  bond  had  been 
signed,  the  jurisdiction  of  the  court  in  which  he  was  constable 
was  increased,  and  new  duties  in  addition  to  the  old  w^ere  im- 
posed on  him,  it  was  held  that  his  sureties  were  liable  for 
an  act  afterwards  done  by  him  in  pursuance  of  the  old 
authority.''  But  where  a  bond  was  executed  by  G,  and 
sureties,  conditioned  for  indemnifying  the  high  sheriff  of  a  county 
against  liability  for  misconduct  of  G  as  deputy  bailiff,  and  after 
the  execution  of  the  bond,  the  jurisdiction  of  the  county  court 
was  extended  and  increased  by  statute,  it  was  held  that  these  stat- 
utes had  so  materially  altered  the  nature  of  the  office  of  bailiff, 
that  the  sureties  M'ere  no  longer  liable  for  the  conduct  of  G,  even 
in  a  matter  which  had  not  been  altered  by  the  subsequent  acts. 
The  court  said:  "When  the  nature  of  the  employment  of  the 
principal  is  so  altered  by  the  act,  either  of  his  employer  or  of  the 
legislature,  that  the  risk  of  his  surety  is  materially  altered,  the 
suret}^  has  a  right  to  say,  '  I  did  not  bargain  for  this  risk.  I  am 
discharged.'  " '  A  sheriff  was  by  statute  ex  officio  collector,  and 
gave  bond  with  sureties  for  the  discharge  of  his  duties.  During 
liis  continuance  in  office,  the  law  in  force  at  the  time, of  the  exe- 
cution of  the  bond  w^as  repealed,  but  all  of  its  material  provisions 
were  incorporated  into  the  repealing  act.  Held,  the  sureties  were 
not  discharged.*  A  sheriff  being  ex  officio  collector  of  the  county 
levy,  gave  a  bond,  which,  among  other  things,  provided  that  he 
should  "  in  all  things  w^ell  and  truly  demean  himself  and  perform 
the  duties  of  collector  of  the  county  levy."  Subsequent  to  the 
execution  of  the  bond,  the  legislature  authorized  an   additional 

'  People  r.  Vilas,  36  New  York,  459,  ^  Mayor  of  New  York  v.  Sibberns, 

per  Grover,  J.     See,   also.  Common-  3  Abbott's  Rep.  Om.  Cas.  2G6. 

wealth  V.  Holmes,    25   Gratt.    (Va.)  'Pybus  ?^  Gibb,  6  E11./&  Black.  902. 

771.  *  People  v.  Leet,  13  111.  261. 
39 


610  SURETIES   ON   OFFICIAL   BONDS. 

coiintjlevy  for  the  purpose  of  building  a  courthouse.  Held,  the 
sureties  on  the  bond  were  liable  for  the  money  collected  on  this 
last  levy.*  The  bond  of  a  United  States  collector  of  customs  was 
conditioned  for  the  faithful  discharge  of  "  all  the  duties  of  said 
office,  according  to  law;"  afterwards,  by  statute,  the  duties  and 
responsibilities  of  the  collector  were  changed  by  statute,  but  the 
nature  and  general  duties  of  his  office  remained  the  same.  Held, 
that  his  sureties  remained  liable  for  all  acts  required  of  him  un- 
der the  old,  as  well  as  the  new  statutes.  "  Otherwise  every  in- 
crease in  the  rate  of  duties,  every  change  in  the  manner  of  con- 
ducting the  office,  or  rendering  accounts  or  paying  out  the  public 
money,  would  discharge  the  bonds  of  all  the  collectors  of  customs 
liolding  under  the  government."''  ^  The  sureties  of  a  postmaster 
are  liaijle  for  an  increased  rate  of  postage  imposed  after  the  mak- 
ing of  the  bond.^ 

§  470.  Liability  of  surety  on  official  bond  determined  by  ref- 
erence to  the  law  in  contemplation  when  he  signed.— A  bond  was 
given  in  Alabama  by  the  guardian  of  a  minor,  after  the  state  had 
seceded  from  the  United  States  and  joined  the  Confederate  States, 
and  after  the  commencement  of  hostilities  between  the  United 
States  and  the  Confederate  States,  conditioned  that  the  guardian 
should  perform  all  the  duties  required  of  him  bylaw:  Held,  that 
the  ''  law  "  referred  to  in  the  bond  was  that  of  the  then  government 
of  Alabama,  and  a  compliance  with  that  law  discharged  the  sureties. 
Tlmt  being  the  only  law  in  existence  at  the  time,  was  the  only 
one  the  parties  could  have  had  in  contemplation.*  After  a  joint 
bond  was  executed  by  principal  and  surety,  a  statute  was  passed 
which  provided  that  in  a  suit  on  a  joint  contract  a  judgment 
might  be  rendered  against  any  of  the  defendants  severally.  After- 
wards the  surety  died:  Held,  his  estate  could  not  be  reached  in 
equity,  and  the  statute  made  no  difference.  Having  been  passed 
subsequent  to  the  date  of  the  bond,  it  could  not  prejudice  the  sur- 
ety.' The  surety  of  an  administrator  for  his  duties  in  selling  the 
real  estate  of  his  intestate  for  the  payment  of  debts,  is  not  dis- 
charged from  liability  because  the  land  is  not  sold  for  want  of 

^  Commonwealth  v.  Gabbert's  Admr.  ^  Postmaster  General  v.  Munger,  2 

5  Bush  (Ky.)  438.  Paine,  189. 

''United    States  v.  Gaussen  Exr.   2  '' Van  Epps  r.  Walsh,  1  Woods,  598. 

Woods,  92,  per  Woods,  J.  Boody  v.  ^  Fielden  v.   Lahens,  6  Blatchford, 

United  States,  1  Woodbmy  &  Minot,  524. 
150. 


CHANGE    IN   TENURE   OF   OFFICE    OR   MODE   OF   APPOINTMENT.    611 

bidders  on  the  first  or  second  order  of  sale,  and  is  sold  on  the 
third  order,  on  terras  prescribed  by  the  court,  different  from  those 
originally  prescribed.  The  conrt  had  a  right  to  vary  the  terms 
of  sale,  and  when  the  surety  became  liable,  it  was  "with  a  full 
knowledge  of  the  power  of  the  court  to  continue  the  order  of  sale, 
and  alter  the  terms  of  payment."  ^  The  sureties  of  a  collector  of 
public  dues  are  not  discharged  by  the  fact  that  after  they  become 
bound  the  legislature  changes  the  currency  in  which  the  dues 
may  be  paid.  The  sureties  were  in  no  manner  prejudiced;  and 
besides  they  must  have  known  the  legislature  had  power  to  change 
the  revenue  laws,  and  they  contracted  with  reference  to  that.^ 
The  sheriff  and  his  sureties  are  liable  on  his  official  bond,  exe- 
cuted before  the  Code  took  effect,  for  his  neglect  to  pay  over 
money  made  on  attachment  process  in  a  proceeding  on  a  claim 
before  it  was  due,  which  was  authorized  by  the  Code  after  the 
date  of  the  bond.^ 

§  471.  When  surety  liable,  although  tenure  of  office  or  mode 
of  appointment  of  officer  changed. — A  was  appointed  treasurer 
of  a  borough,  the  office  then  being  annual,  and  gave  a  bond  con- 
ditioned for  accounting  "during  the  whole  time  of  A  continuins' 
in  said  office  in  consequence  of  said  election,  or  under  any  an- 
nual or  future  election  of  the  said  council  to  said  office."  After- 
wards, by  statute,  the  office  was  changed,  so  that  the  tenure  was 
during  pleasure  instead  of  annual.  A  continued  to  hold  the 
office  under  successive  appointments,  and  committed  defaults 
while  holding  the  office  during  pleasure.  Held,  the  sureties  were 
liable  by  the  express  terms  of  the  bond.  The  office  and  the 
duties  remained  the  same,  and  an  aimual  accounting  was  still 
required.  The  tenure  of  the  office  only  was  changed."  It  has 
been  held  that  the  surety  of  a  deputy  treasurer  is  not  discharged 
by  the  fact  that  the  manner  of  appointment  of  the  treasurer  is 
afterwards  changed,  where  the  deputy  has  continued  to  hold  the 
office  after  an  election  of  the  treasurer  under  the  new  law,  and 
subsequently  made  default.^ 

'  Sawyers  v.  Hicks,  6  Watts  (Pa.)  76.  *  Mayor  of  Berwick  v.  OsAvald,  1  Ell. 
''Borden  ?'.  Houston,  2  Texas,  594.  &  Black.  295;  affirmed,  Mayor  of  Ber- 
5  King?;.  Nichols,  16  Ohio  St.  80.  See  wick  r.  Oswald,  3  Ell.  &  Black.  653. 
also,  to  the  effect  that  a  surety  is  only  To  similar  effect,  see  Mayor  of  Dart- 
bound  with  reference  to  the  law  which  mouth  v.  Silly.  7  Ell.  &  Black.  97. 
he  had  in  contemplation  when  he  sign-  '  Baby  v.  Baby,  8  Up.  Can.  Q. 
ed,  Reynolds  v.  Hall,  1  Scam.  (111.)  35.  B.  R.  76. 


612  SURETIES   ON   OFFICIAL    BONDS. 

§  472.  Discharge  of  surety  by  change  in  the  emoluments  of 
office,  etc. — Certain  parties  became  bound  as  sureties  of  tlie 
sheriff  of  the  parish  of  Orleans  for  the  term  of  liis  office,  which 
was  two  years.  During  that  time  the  office  of  sheriff  of  the 
criminal  court  of  New  Orleans  was  created.  This  latter  sheriff 
had  the  serving  of  all  processes  from  said  court,  the  keeping  of 
the  prison,  the  boarding  of  the  prisoners,  etc.,  which  the  sheriff 
of  the  parish  formerly  had.  After  this  office  was  created,  the 
sheriff  of  the  parish  received  money  which  he  did  not  pay 
over,  and  it  was  held  that  his  sureties  were  not  liable  therefor. 
The  creation  of  the  new  office  had  entirely  changed  the  condition 
of  the  sheriffi  The  sureties  did  not  agree  to  become  bound  for  a 
sheriff  performing  such  duties  as  were  left  to  the  sheriff  of  the 
parish.  It  was  a  change  v/liich  they  could  not  have  foreseen,  and  they 
were  discharged  thereby.^  .But  where  during  the  term  of  office  of 
a  collector  of  a  township  the  township  was  divided  by  statutory 
enactment  and  a  new  township  made  out  of  a  portion  thereof,  it 
was  held  that  this  did  not  discharge  the  sureties  on  the  collector's 
official  bond,  he  continuing  to  act  as  collector  of  the  portion  of  the 
township  retaining  the  old  name  and  organization,  and  the  town- 
ship remaining  unchanged  in  its  corporate  character.'^  A  change 
in  the  name  of  a  collection  district  after  the  sureties  of  a  deputy 
collector  have  become  bound,  will  not  discharge  such  sureties.^ 

§  473.  "When  general  bond  of  officer  covers  special  fund  col- 
lected or  received  by  him. — The  bond  of  a  tax  collector  provided 
that  he  should  collect  "  all  the  taxes  assessed  in  his  county  for 
the  state  and  county  purposes  *  according  to  the  requisitions 
of  law."  When  the  bond  was  executed,  the  board  of  police  had 
power  to  levy  a  special  tax  to  build  a  court  house,  etc.,  and 
also  had  power  to  require  therefor  an  additional  bond  from  the 
tax  collector.  A  special  tax  was  levied  to  build  a  court  house. 
This  was  collected  by  the  collector,  and  no  new  bond  was  taken 
of  him  for  it,  although  the  sureties  on  his  general  bond  re- 
quested that  there  should  be.  Held,  the  sureties  on  the  collec- 
tor's general  bond  were  liable  for  the  tax  thus    collected.      The 

'  Roman  v.  Peters,  2  Robinson  (La. )  "  Municipality  of  Whitby  v.  Flint,  9 

479.   Holding- that  an  increase  or  dimi-  Up.  Can.  C.  P.  R.  449. 
nution  of  the  fees  of  an  officer  during  ^Schuster  v.  Weissnian,  63  Mo,  552. 

his  term  does  not  change  his  office  nor  See,  also,  on  this  subject.  Corporation 

release  the  sureties  on  his  official  bond,  of  Ontario  r.  Paxton,  27  Up.  Can.  C. 

see  Sacramento  Co.  v.  Bird,  31  Cal.  66.  P.  R.  104. 


I 


WHETHER   GENERAL    BOND    COVERS    SPECIAL    FUND,  613 

board  of  police  had  power  to  require  a  new  bond,  but  were  not 
obliged  to  do  so,  and  the  general  bond  covered  the  special  levy, 
as  it  was  for  a  countj  purpose.^  At  the  time  tlie  sureties 
signed  a  county  treasurer's  official  bond,  there  was  a  statute 
which  provided  that  a  certain  fund  should  be  divided  between 
counties  through  which  no  railroad  or  canal  ran,  which  fund 
should  be  used  in  the  improvement  of  roads,  constructing  of 
bridges,  and  other  public  works,  but  it  was  not  then  known 
what  counties  would  be  entitled  to  the  fund.  Subsequently  the 
county  was  declared  to  be  entitled  to  a  portion  of  the  fund,  and 
the  county  treasurer  was  appointed  to  receive,  and  did  receive 
it.  Held,  the  sureties  on  his  official  bond  were  not  liable  for 
his  actings  and  doings  as  to  said  fund.  It  was  a  definite  ap- 
propriation for  a  particular  purpose,  and  in  the  nature  of  a 
special  deposit.  If  it  had  been  given  to  the  county  without 
any  restriction  as  to  its  disposition,  the  sureties  would  have 
been  liable.*  Where  a  statute  provided  that  a  state  treasurer 
should  receive  on  special  deposit  money  from  those  who  de- 
sired to  purchase  j)ublic  lands,  and  that  such  money  should  be 
kept  separate  from  state  funds  till  the  sale  was  completed,  and 
should  then  be  transferred  to  the  funds  of  the  state,  and  if  the 
sale  was  not  completed  that  such  money  should  be  returned  to 
the  depositor,  it  was  held  that  the  sureties  on  the  official  bond  of 
the  treasurer  were  liable  for  the  money  so  deposited.^  The  bond 
of  a  guardian  was  by  statute  required  to  be  in  double  the  amount 
of  all  the  real  and  personal  estate  of  the  ward,  and  the  general 
bond  of  a  guardian  provided  for  the  payment  by  him  of  all 
money  coming  to  his  hands  which  belonged  to  the  ward.  The 
statute  also  provided,  that  when  a  guardian  desired  t^  lease  lands 
of  the  ward,  he  should  get  a  special  order  of  the  court  for  so 
doing,  and  should  give  another  bond  for  the  rents.     A  guardian 

^  State  ('.  Hathorn,  36  Miss.  491.  To  Holding'  that  the  sureties  of  the  treas- 
a  simila.r  effect,  see  McGuire  i'.  Bry,  8  ui-er  of  a  Poor  Law  Union,  where  the 
Robinson  (La.)  196.  Holding'  that  bond  recites  that  he  shall  pay  all 
the  sureties  on  the  general  bond  of  an  "  balances  "  due  the  Union,  are  liable 
officer  are  liable  for  duties  imposed  for  a  balance,  although  it  is  not  for 
upon  him  by  special  statute  before  money  received  by  him,  but  is  the  re- 
the  sureties  became  liable,  see  State  suit  of  a  trading  between  him  and 
V.  Bradshaw,  10  Iredell  Law  (Nor.  the  Union,  see  Belfield  Union  v.  Pat- 
Car.)  229.  tison,  2  Hurl.  &  Gor.  62-3;  Pattison  v. 

2  People  V.  Moon,  3  Scam.  (111.)  123.  Belfield  Union,  1  Hurl.  &  Nor.  523. 

^  State  V.  Khoades,  7  Nevada,  434. 


614  SURETIES    ON    OFFICIAL    BOXDS. 

got  a  special  order  of  the  court  for  tlie  leasing  of  the  ward's  land, 
and  was  ordered  to  give  a  bond  for  the  rents,  but  failed  to  do  so. 
Held,  the  sureties  on  the  guardian's  general  bond  were  liable  for 
the  rents  collected  by  him  in  pursuance  of  tlie  order.  The  court 
said  it  was  part  of  the  duty  of  a  guardian  at  common  law  to  col- 
lect rent  belonging  to  the  ward.  The  extra  bond  required  was 
cumulative,  and  would  not  release  the  sureties  on  the  general 
bond,  who  by  the  terms  of  their  bond  were  liable.^  But  where 
a  statute  provided  that  upon  a  sale  by  a  guardian  of  real  estate 
of  the  ward,  he  should  give  a  special  bond  to  account  fur  the 
proceeds,  it  was  held  that  the  sureties  on  his  general  bond  were 
not  liable  for  such  proceeds,  although  the  terms  of  the  bond  were 
broad  enough  to  cover  such  proceeds." 

§  474.  Laches  cannot  be  imputed  to  the  state — Sureties  of 
one  ofBcer  not  discharged  by  negligence  of  other  ofBcers. — In 
general,  laches  cannot  be  imputed  to  the  government,  and  where 
the  laws  require  periodical  accounts  and  settlements  or  an  exami- 
nation of  the  accounts  of  an  officer  at  stated  times,  and  the  offi- 
cers whose  duty  it  is  to  enforce  these  provisions  fail  to  do  so,  and 
they  are  not  complied  with  by  the  principal,  such  neglect  does 
not  discharge  the  sureties  on  the  principal's  official  bond.  "  It 
is  said  that  the  laws  require  that  settlements  should  be  made  at 
short  and  stated  periods,  and  that  the  sureties  have  a  right  to 
look  to  this  as  their  security.  But  these  provisions  of  the  law 
are  created  by  the  government  for  its  own  security  and  protec- 
tion, and  to  regulate  the  conduct  of  its  own  officers.  They  are 
merely  directory  to  such  officers,  and  constitute  no  part  of  the 
contract  with  the  surety." '  This  general  principle  is  equally 
applicable  to  all  corporations,  j)ublic  and  private.  All  the  officers 
of  a  government  or  corporation  should  observe  its  laws  and  regu- 
lations, and  the  sureties  of  one  officer  cannot  set  up  as  a  defense 
when  sued  for  the  misconduct  of  their  principal  the  fact  that  an- 
other set  of  officers  have  neglected  or  violated  their  duty.  It 
should  be  borne  in  mind  that  all  the  officers  of  a  government  or 
corporation  are  its  agents  only,  and  cannot  bind  their  prin- 
cipal by  acts    or   defaults,    whicli    are   not   only  unauthorized, 

'  Wann  v.  The  People,    57  111.   202.  and  City  Council  of  Natchitoches  v. 

-Henderson    v.  Coover,  4  Nevada,  Redmond,  28  La.  An.  274;  Mayor  and 

429.  Selectmen  of  Homer  i\  Merritt,  27  La. 

'^  United    States    v.    Kirkpatriclc,   9  An.  568;  Duncan  r.  The  State,  7  La. 

Wheaton,  720,  per  Story,  J.;  Mayor  An.  377. 


NEGLIGEKCE    OF    OTHEE    OFFICEKS.  615 

but  are  expressly  proliibited.  The  sureties  of  an  officer  of 
a  government  or  corporation  are  not  discharged  by  reason 
of  the  fact  that  his  accounts  are  not  examined  by  other 
officers  thereof  at  the  time  prescribed  by  law;'  nor  by  reason 
of  the  fact  that  such  accounts  are  so  negligently  examined  as 
not  to  discover  existing  defalcations:^  nor  by  reason  of  the 
fact  that  money  far  exceeding  the  proper  amount  is  negligently 
permitted  to  remain  in  the  hands  of  the  principal.^  The  sureties 
of  a  public  officer  are  not  discharged  by  the  failure  of  the  gov- 
ernment to  notify  them  of  his  default.  The  suret}^  must  in  such 
case  take  notice  of  his  principal's  defaults."  The  surety  on  a 
bond  for  the  payment  of  duties,  is  not  discharged  by  a  mere  delay 
in  demanding  payment  after  it  becomes  due,  even  though  an  act  of 
congress  required  that  suits  for  customs  should  be  commenced  with- 
out delay,  and  suit  is  not,  in  fact,  commenced  for  ten  years."  It  has 
been  held  that  the  sureties  of  a  township  treasurer  are  not  dis- 
charged by  reason  of  the  fact  that  the  township  council  permits 
him  to  mix  township  money  with  his  own."  So  it  has  been  held 
that  the  surety  of  a  guardian  is  not  discharged  by  the  failure  of 
the  county  court  for  five  years  to  compel  the  principal  to  file  an 
inventory  and  account.^  The  sureties  of  a  sheriff"  are  not  dis- 
charged by  the  failure  of  the  county  court  to  appoint  commission- 
ers to  investigate  his  accounts  as  required  by  law.*  It  has  been 
held  that  it  furnishes  no  defense  to  the  sureties  of  a  delinquent 
town  collector,  that  if  the  warrant  against  their  principal  had 
been  issued  witliin  the  time  prescribed  by  law,  the  amount  due 
might  have  been  collected  from  him.^ 

§  475.      Surety  of    ofBcer   not   discharged   by  violation  of  stat- 
utes enacted  for  the  benefit  of  the  Government. — A  statute  pro- 

^  Amherst  Bank  v.    Root,    2    Met.  n'he  People   i\   Russell,   4  Wend. 

(Mass.)   522;     Detroit  v.    Weber,   26  570;  Regina  v.  Pringle,  32  Up.  Can. 

Mich.  284;    City  Council  r.  Paterson,  Q.  B.  R.  308. 

2  Bailey  Law  (So.  Car.)  165;  Collins  v.  ^Hunt  v.  United  States,  1  Gallison, 

Gwynne,  2  Moore  &  Scott,  640;  Com-  32.     To  similar  effect,  see  Dox  v.  Post- 

monwealth  v.  Wolbert,  6  Binney  (Pa.)  master  General,  1  Peters,  318. 

292;    Inhabitants  of   Farmington    i-.  ^  Municipal  Corporation  of  East  Zora, 

Stanley,    60    Me.   472.     Contra,   The  v.  Douglas,  17  Grant's  Ch.  R.  462. 

People  V.  Jansen,  7  Johns.  332.  '  Commonwealth  v.  Preston,  5  T.  B. 

^  Board  of  Supervisors  v.   Otis,   62  Mon.  (Ky.)  584. 

New  York,  88;  County  of   Frontenac  ®Bonta  r.  Mercer  County  Court,  7 

t\  Breden,  17  Grant's  Ch.  R.  645.  Bush  (Ky.)  576. 

^  Creighton   v.   Rankin,  7  Clark  &  ^  Looney  v.  Hughes,  26  New  York, 

FinneUy,  325.  514. 


GIG  SUKETIES   ON    OFFICIAL   BONDS, 

vided  that  a  distiller  should,  upon  filing  with  the  assessor  notice 
of  his  intention  to  commence  business,  execute  a  "bond  with  sure- 
ties to  he  approved  by  the  assessor,  and  that  no  bond  should  be 
approved  unless  the  distiller  should  be  the  owner  of  the  unin- 
cumbered fee  of  the  land  on  which  the  distillery  was  situated. 
The  bond  of  a  distiller  was  approved,  the  land  being  incumbered. 
Held,  the  sureties  were  not  discharged  by  this  fact.  The  object 
of  the  law  was  to  protect  the  government,  not  benefit  the  sureties, 
and  the  sureties  should  have  seen  for  tliemselves,  that  the  land 
was  unincumbered.^  A  county  treasurer  upon  being  re-appointed, 
gave  a  new  official  bond  with  sureties,  without  having  first  tiled 
in  the  commissioner's  office  a  certificate  of  his  settlement,  and  the 
payment  of  his  account  with  the  state  for  the  previous  year,  as 
the  law  required.  Held,  this  was  no  defense  to  the  sureties  on 
the  new  bond,^  A  statute  provided  that  if  the  paymaster  of  a 
regiment  failed  for  six  months  to  render  his  vouchers  to  the  pay- 
master general,  he  should  be  recalled  and  another  appointed  in 
his  place,  and  also  provided  that  he  should  render  monthly  ac- 
counts. The  paymaster  did  not  render  his  accounts  as  the  law 
required,  and  failed  for  more  than  six  months  to  render  accounts, 
but  he  was  not  removed,  and  afterwards  received  money.  Held,  the 
sureties  on  his  official  bond  were  liable  for  the  money  so  received.^ 
It  has  been  held  that  statutes  which  required  the  special  direction 
of  the  President  of  the  United  States  to  authorize  the  advance 
of  public  moneys  to  a  disbursing  officer,  were  merely  directory, 
and  were  not  a  qualification  of  the  contract  of  a  surety  of  such 
officer,  and  that  the  surety  was  liable  for  the  misapplication  of 
public  money  by  the  principal,  even  though  it  was  advanced  to 
him  contrary  to  the  statute.* 

§  476.  Surety  of  an  officer  not  discharged  by  unauthorized  act 
of  another  officer. — The  sureties  of  one  officer  of  a  government  or 
corporation  are  not  afi:ected  by  the  unauthorized  positive  act  of 
other  officers  of  the  government  or  corporation.  Thus,  the  ordi- 
nances of  a  city  expressly  prohibited  the  city  treasurer  from  using 
the  public  money  for  his  own  benefit.  The  mayor  and  council  of 
the  city  allowed  the   treasurer  to  use  the  public  money  for  his 

'  Osborne  v.  United  States,  19  Wal-  ^  United    States    v.    Vanzandt,    11 

lace,  577.  Wheaton,  184.  See,  also.  United  States 

^  Clarke  v.  Potter  County,  1  Pa.  St.  v.  Nicholl,  12  Wheaton,  505. 

159.     To  similar  effect,   see  State  v.  ^  United  States  v.  Cutter,  2  Curtis, 

Hayes,  7  La.  An.  118.  617. 


UNATJTnOKIZED   ACT   OF   AJSTOTHEK   OFFICER,  617 

own  purposes  ujion  his  agreement  to  pay  interest  tlierefor:  Held, 
the  sureties  on  the  treasurer's  official  bond  were  not  tliereby  dis- 
charged. The  court  said:  "The  funds  are  collected  for  public 
purposes.  The  mayor  and  council  had  no  right  and  no  power  to 
use  them  for  any  other  purpose.  '''  An  illegal  contract  could 
not  enlarge  the  power  of  the  city  treasurer,  neither  could  it  limit 
his  responsibility.  That  the  illegal  contract  was  made  with  the 
other  agents  of  the  city  does  not  change  the  principle  nor  alter  the 
duties  and  obligations  of  the  treasurer.  They  remained  the  same 
and  were  defined  by  law.  *  The  whole  fallacy  of  the  argument 
of  the  plaintiffs  in  error  lies  in  confounding  the  mayor  and 
council  of  the  city  with  the  city  itself." '  The  same  thing  was 
held  where  the  board  of  directors  of  a  corporation,  by  an  order 
not  warranted  by  the  by-laws  thereof,  authorized  the  treasurer  of 
thfe  corporation  to  loan  its  money  when  he  should  have  deposited 
it  in  a  bank.'*  Upon  the  same  principle  it  has  been  held  that  the 
sureties  of  a  tax  collector  are  not  discharged  by  the  fact  that  the 
county  commissioners  falsely  advertised  that  he  had  paid  up  all 
his  liabilities  for  his  preceding  term,  and  the  sureties  became 
bound,  relying  on  said  advertisement.^  A  surety  of  a  city 
treasurer,  being  sued  on  his  bond,  pleaded  that  the  mayor 
of  the  city  had  released  his  co-surety.  Held,  no  defense  as 
the  mayor  had  no  authority  to  release  the  co-surety.^  At 
the  expiration  of  the  second  term  of  office  of  a  countj^  treas- 
urer, the  county  board,  without  any  authority  so  to  do,  allowed 
him  $2,000  above  his  regular  salary  for  selling  tax  certificates, 
etc.,  and  settled  with  him  on  that  basis.  Held,  the  sureties  on  the 
treasurer's  official  bond  were  not  discharged  from  the  payment 
of  the  $2,000,  as  the  action  of  the  county  boaM  was  absolutely 
void.*  A  county  treasurer  was  liable  for  interest  on  public  money, 
and  also  for  certain  money  not  paid  over  by  him.  The  board  of 
supervisors  allowed  him  the  interest  as  a  perquisite  of  office,  and 
forgave  him  the  other  money  on  account  of  his  services  in  avert- 
ing a  draft.  Held,  the  acts  of  the  board  were  illegal,  and  the  sure- 
ties on .  the  treasurer's  official  bond  were  liable  for  the  interest 

'  Manley  v.  City  of  Atchison,  9  Kan-  troit  v.  Weber  26  Mich.  284;  State  v. 

sas,  358,  per  Kingman,  C.  J.  Bates  06  Vt.  387. 

-Spring  Hill  Mining  Co.  v.  Sharp,  *  Mayor  ??.  Blache,  6  La.  (Curry)  500. 

3  Pugsley  (New  Bruns.)  603.  ^  Supervisors  of   Kewannee  Co.   v. 

^  Bower  v.  Com.  of  Wash.  Co.  25  Knipfer,  37  Wis.  496;  see,  also,  Wil- 

Pa.  St.  69.     To  similar  effect,  see  De-  son  v.  Glover,  3  Pa.  St.  404. 


618  SURETIES    ON    OFFICIAL    BONDS. 

and  tlie  other  money,  notwithstanding  said  acts  of  tlie  board.' 
Upon  the  presentation  of  the  account  of  a  treasurer  of  a  town,  the 
selectmen  examined  it,  and  failing  to  detect  an  error  in  addition, 
certified  the  account  to  be  correct,  when,  in  fact,  there  was  a  de- 
ficit. The  surety  on  the  treasurer's  official  bond  knew  of  this 
certificate  soon  after  its  entry  on  the  treasurer's  books.  The  treas- 
urer was  then  solvent,  but  afterwards  died  insolvent,  and  the  sure- 
ty was  afterwards  sued  for  the  above  deficit.  Held,  he  was  liable 
therefor.  The  selectmen  had  no  right,  directly  nor  indirectly,  to 
discharge  the  treasurer  nor  his  surety  from  liability  on  their  bond 
in  case  of  a  breach  thereof.^ 

§  477,  Surety  of  government  officer  liable  for  money  stolen 
from  or  otherwise  lost  by  him. — The  sureties  on  the  ofiicial  bond 
of  a  government  ofiicer  are  not  discharged  from  liability  for  pub- 
lic money  received  by  the  officer,  by  reason  of  the  fact  that  such 
money  is  stolen  from  him,  or  otherwise  lost  by  liim  without  his 
fault,  even  though  he  acted  with  reference  to  the  matter  in  a 
careful  and  prudent  manner.^  This  is  held  upon  the  ground  that 
it  is  not  a  question  of  bailment,  but  of  special  contract,  and  -pnh- 
lic  policy  requires  that  the  officer  in  such  case  shall  be  held  to  a 
strict  accountability.  Where  the  bond  of  a  township  treasurer 
provided  that  he  should  "  well  and  truly  fulfill  the  duties  of  treas- 
urer '"  to  the  best  of  his  ability,  and  according  to  law,"  and 
public  money  received  by  him  was  destroyed  by  accidental  fire 
and  without  the  fault  of  the  treasurer,  it  was  held  that  the  sure- 
ties on  his  official  bond  were  lial)le  for  such  raoney,^  The  fact  that 
a  county  treasurer  has  deposited  the  county  money  in  a  bank  which 
afterwards  fails,  even  though  he  was  guilty  of  no  negligence  in 
making  such  deposit,  does  not  discharge  his  surety  from  the  pay- 
ment of  the  money  thus  lost.^     But  it  has  been  held  that  the  con- 

•  Supervisors  of   Richmond   Go.   v.  ^  Bog-gs  t?.  The  State,  46  Texas,  10; 

Wandel,  6  Lansing  (N.Y.)  33.  Inhabitants  of  New  Providence  r.  Mc- 

^  Inhabitants  of  Farmingtonv.  Stan-  Eachron,4VroomtN.J.)339;  Common- 
ley,  60  Me.  472;  Board  of  Supervisors  wealth  v.  Comly,  3  Pa.  St.  372;  McEach- 
of  Jefferson  Co.  v.  Jones,  19  Wis.  51.  ron  r.  Inhabitants  of  New  Providence, 
Holding  that  the  sureties  of  a  marshal  6  Vroom  (N.  J.)  528.  Contra,  by  an 
are  not  discharged  :&:om  the  payment  evenly  divided  court,  see  Supervisors 
of  costs  collected  by  him  for  a  clerk,  by  of  Albany  v.  Dorr,  7  Hill  (N.  Y.)  583. 
reason  of  the  fact  that  the  clerk  per-  ■*  District  Township  of  Union  v. 
nutted  him  to  return  the  execution  sat-  Smith,  39  Iowa,  9. 
isfied,  see  McNairy  r.  Marshall,  7  ^Supervisors  of  Omro  f.  Kaime,  39 
Humph.  (Tenn.)  229.  Wis.  468. 


MISCELLANEOUS    CASES.  619 

dition  of  tlie  bond  of  a  treasurer  of  a  railroad  company  that  lie 
should  "  faithfully  discharge  the  duties  of  the  office,  and  well 
and  correctly  behave  therein,"  does  not  bind  him  to  heep  the 
money  of  the  company  safely  against  all  hazard*.  It  only  binds 
him  to  an  honest,  diligent  and  competently  skillful  effort  to  keep 
the  money.  And  if  such  treasurer  deposits  the  company's  money 
to  his  credit  as  treasurer  in  a  banking  house  which  is  at  tlie  time 
in  good  credit  and  standing,  and  generally  considered  a  safe  place 
for  the  deposit  of  money,  neither  he  nor  his  sureties  are  liable  for 
a  loss  occasioned  by  the  sudden  and  unexpected  failure  of  the 
bank.  The  case  was  distinguished  from  that  of  a  government 
officer,  who  was  said  to  be  held  liable  in  such  a  case  on  grounds 
of  public  policy.' 

§  478.  Miscellaneous  cases  concerning  sureties  on  official 
bonds. — A  collector  of  internal  revenue  may  recover  against  his 
deputy  and  the  sureties  on  his  official  bond,  for  money  collected 
by  the  deputy  and  not  paid  over  without  first  showing  that  he 
has  paid  to  the  government  the  amount  so  collected  by  the  dej)- 
uty."  The  bond  of  a  township  treasurer  provided  that  he  should 
fulfill  his  duties  "  to  the  best  of  his  ability":  Held,  these  words 
did  not  lessen  his  liability,  nor  that  of  his  sureties,  and  they  were 
liable  for  township  money  accidentally  destroyed  by  fire.^  Where 
it  is  the  statutory  duty  of  a  notary  public  to  give  notice  of  pro- 
test, the  sureties  on  his  official  bond  are  liable  for  his  failure 'to 
give  such  notice."  The  sureties  on  the  bond  of  a  county  auditor 
are  liable  for  any  overdrafts  he  may  have  made  by  issuing  war- 
rants payable  to  himself  for  salary,  and  receiving  from  the  treas- 
urer the  amount  thereof  in  excess  of  the  compensation  allowed 
him  by  the  board  of  supervisors.^  The  omission  of  a  collector  of 
pnblic  revenue  to  remove  a  deputy  collector  after  knowledge  of  a 
default  by  the  latter,  does  not  discharge  the  sureties  of  the  depu- 
ty.' When  one  elected  to  the  office  of  tax  collector  failed  until 
after  the  time  for  him  to  enter  upon  his  duties,  to  file  his  official 
bond  which  had  been  duly  prepared  and  stated  that  he  had  been 
elected  to  the  office,  and  the  office  was  thereupon  declared  to  be 

^  Atlantic  &  N.C.  R.  R.  Co.  v.  Cowles,  ^  Wheeler  v.  The  State,  9  Heiskell 

69  Nor.  Car.  59.  (Tenn.)  393. 

2 Fuller  V,  Calkins,  22  Iowa,  301.  ^Mahaska  County  v.  Ruan,  45  Iowa, 

^District  Township    of    Union    v.      328. 
Smith,  39  Iowa,  9.  ^  Pickering  v.  Day,  2   Delaware  Ch. 

R.  333. 


620  SURETIES    ON    OFFICIAL    BONDS. 

vacant,  and  he  was  subsequently  appointed  to  the  same  office, 
whereupon  the  bond  first  prepared  was  filed,  it  was  held  that  the 
sureties  thereon  were  not  liable  for  the  default  of  the  collector.^ 
The  liability  of  the  sureties  on  the  official  bond  of  an  officer  for  a 
failure  on  his  part  to  pay  over  money  collected  by  him  under  an 
execution,  is  not  such  a  liability  as  will  constitute  them  debtors 
of  the  plaintiff  in  such  execution,  so  as  to  subject  them  to  garn- 
ishment process  as  debtors  of  such  plaintiff,^  Where  the  miscon- 
duct of  an  officer  consists  in  a  neglect  of  official  duty,  such  neglect, 
although  a  negative,  must  be  proved  by  the  party  alleging  it.^ 
If  an  official  bond  is  taken  in  the  penal  sum  of  $20,000,  and 
is  signed  by  ten  sureties,  who  bind  themselves,  severally  and 
not  jointly,  in  tlie  sum  of  $2,000  each,  a  judgment  may  be 
had  against  each  surety  for  the  full  sum  of  $2,000,  if  an  unsat- 
isfied defalcation  of  the  principal  exceeds  that  sum,  although 
such  defalcation  is  less  than  $20,000;  but  the  obligee  can  only 
have  satisfaction  to  the  amount  of  the  defalcation.*  The  sureties 
on  an  official  bond  cannot  recover  from  third  persons  money  j^aid 
them  by  the  principal,  even  though  such  money  was  trust  funds 
in  his  hands  as  an  officer.^ 

§  479.  Liability  of  surety  of  bank  clerk  or  cashier. — The 
sureties  of  the  cashier  of  a  bank,  Avhen  their  bond  provides  for 
his  good  behavior,  as  such  are  not  liable  for  money  collected  by 
him  as  an  attorney  for  the  bank,  and  not  as  cashier.^  Money 
paid  to  the  cashier  of  a  bank,  on  the  street,  and  also  at  a  parent 
bank,  to  be  deposited  in  the  branch  of  which  he  is  cashier,  both 
payments  being  made  to  him  as  cashier,  and  as  a  deposit  in  the 

'  Winneshiek    Co.  v.    Maynard,  44  of  said  notes  to  said  owners,  see  Union 

Iowa,  15.  Bank  v.  Tliompson,  8  Robinson  (La.) 

2  Eddy  V.   Heath's   Garnishees,    31  227.     Holding  that  an  authority  to  fill 

Mo.  141.  a  blank  in  an  official  bond,  may  be  m- 

'Dobbs  V.  The  Justices,  17  Ga.  624.  ferreJ  from  circumstances,  see  State  r. 

^ Bank  of   Brighton  v.    Smith,    12  Young,  23  Minn.  551.     Holding  it  to 

Allen,  243.  be  no  defense  to  the  surety  on  a  guar- 

^Clore  V.   Bailey,  6  Bush.  (Ky.)  77.  dian's  bond,  that  another  named  in 

Holding  that  the  surety  of  a  bank  the  bond  as  sur  ety  did  not  sign  it,  un- 

officer  are  not  liable  for  any    more  less  the  obligee  had  express  notice  that 

damage  than  has  actually  been  sus-  there  was  an  agreement  that  such  oth- 

tained  by  the  owners  of  notes  in  the  er  should  sign,  see  State  v.  Lewis,  73 

bank  for  collection,  in  consequence  of  Nor.  Car.  138. 

a  failure  of  the  officer  to  have  such  *  Dedham  Bank>'.  Chickering,  4  Pick, 

notes    protested    at    maturity,    even  314. 
though  the  bank  has  paid  the  amount 


SURETIES   OF   JUSTICE   OF   THE    PEACE.  621 

bank  of  which  he  is  cashier,  is  money  received  by  him  in  his 
official  capacity,  and  for  which  the  sureties  on  his  official  bond  are 
liable.^  The  same  thing  was  held  where  a  bank  clerk  was  at  the 
request  of  a  customer  of  the  bank,  sent  to  his  residence,  about 
eleven  miles  from  the  bank,  for  the  jDurpose  of  receiving  a  large 
sum  of  money  to  be  placed  to  his  account,  and  the  clerk  on  his 
way  back  to  the  bank  lost  some  of  the  money .^  It  has  been  held 
that  it  is  not  a  forfeiture  of  a  bond  conditioned  for  the  faithful 
service  of  a  cashier,  and  for  indemnifying  against  all  loss  by  his 
malfeasance,  misfeasance,  willful  neglect  or  wrongful  act,  that  a 
loss  has  occurred  by  mere  accident  or  mistake,  or  by  his  being 
unable  to  perform  all  the  duties  put  upon  him.^  Where  the  con- 
dition of  a  bond  was  that  A,  who  as  a  clerk  in  a  bank,  should 
"  well  and  faithfully  perform  the  duties  assigned  to  and  trust  re- 
posed in  him,  as  hrst  teller,"  etc.,  it  was  held  to  apply  to  the 
honesty,  and  not  to  the  ability  of  the  clerk,  and  that  the  sureties 
were  not  responsible  for  a  loss  happening  to  the  bank  from  a  mis- 
take of  the  clerk,''  But  where  the  condition  of  a  bank  clerk's 
bond  provided  that  he  should  perform  all  the  duties  incumbent 
on  him  by  virtue  of  his  office,  and  should  pay  the  bank  such 
damages  or  losses  as  it  might  incur  by  reason  of  the  unfaithful 
performance  of  any  of  the  duties  of  said  office,  it  was  held  that 
the  sureties  therein  were  liable  for  any  loss  which  the  bank 
might  sustain  in  consequence  of  any  negligence  of  the  principal, 
gross  or  slifi^ht,  in  the  discharo^e  of  his  official  duties/  A  cashier's 
bond  is  not  void  as  against  the  policy  of  the  law  by  reason  of  its 
being  approved  by  a  board  of  directors,  some  of  whom  had  exe- 
cuted it  as  sureties/ 

§  480.  Liability  of  sureties  of  a  justice  of  the  peace. — The 
duties  of  a  justice  of  the  peace  are  both  of  a  judicial  and  minis- 
terial character;  judicial  where  he  is  required  to  act  as  a  court, 
and  pass  upon  and  determine  cases  as  they  are  tried  before  him; 
ministerial  where  he  has  to  issue  process,  collect  and  pay  over 
money,  etc.  His  bond  is  usually  conditioned  that  he  will  dis- 
charge every  duty,  both  judicial  and  ministerial,  faithfully  and 

^  Pendleton  ?'.  Bank  of  Kentucky,  1  *  Union   Bank   v.  Clossey,  10  Johns. 

T.  B.  Mon.  (Ky.)  171.  271. 

2  Melville  v.  Doiclge,  6  Man.  Gr.  &  ^  Union  Bank  r.  Thompson,  8  Rob- 
Scott,  450.  inson  (La.)  227. 

2  Mdrris  Canal  &  Banking  Co.  v. Van  ^  Amherst    Bank    v.  Root,   2    Met, 

Vorst's  Admx.  1  Zabriskie  (N.  J.)  100.  (Mass.)  522. 


G22  SURETIES   ON   OFFICIAL    BONDS. 

impartially,  without  fear,  favor,  fraud  or  oppression.  Wliere  an  offi- 
cer acting  in  a  judicial  capacity  errs  in  judgment,  he  is  not  liable, 
but  where  he  acts  through  favor,  fraud  or  partialit}^,  or  knowing- 
ly commits  a  WTong  by  virtue  of  his  office,  both  he  and  the  sure- 
ties on  his  official  bond  are  liable  therefor.  Thus,  where  a  justice 
through  favor,  and  with  the  intent  to  defraud  a  party,  heard  a 
case  three  hours  before  it  was  set  for  hearing,  it  was  held  that  he 
and  the  sureties  on  his  official  bond  were  liable  therefor  to  the 
party  injured.^  The  sureties  on  the  official  bond  of  a  justice  are 
liable  if  he  issues  an  execution  in  a  case  over  the  subject  matter 
of  which  he  has  jurisdiction,  but  in  the  issuing  of  which  he  in- 
fringes the  law  and  abuses  his  authority.^  The  issuing  by  a  jus- 
tice of  an  order  of  arrest  in  a  civil  action,  without  an  undertaking 
being  previously  executed  as  required  by  statute,  is  a  neglect  to 
well  and  truly  perform  a  ministerial  act  which  constitutes  a  breach 
of  the  official  bond  of  the  justice  and  renders  his  sureties  liable. 
"A  justice  of  the  peace  acts  in  both  a  judicial  and  ministerial  ca- 
pacity. The  manner  of  discharging  his  judicial  duties  is  left  to 
his  own  judgment,  but  in  general  the  acts  which  he  is  required  to 
perform  in  a  particular  way,  and  as  to  which  he  has  no  discretion 
about  the  manner  of  their  performance,  are  of  a  ministerial  char- 
acter. In  regard  to  issuing  an  order  of  arrest,  everything  to  be 
done  is  sj)ecifically  defined  by  the  statute.  Nothing  is  left  to  the 
discretion  of  the  justice;  he  must  proceed  in  a  specified  manner. 
He  acts  in  the  same  capacity  that  he  does  in  issuing  an  execution 
after  judgment." '  Where  a  justice,  without  any  authority  so  to 
do,  ordered  a  constable  to  be  committed  to  jail  for  contempt  of 
court,  it  was  held  that  the  sureties  on  his  official  bond  were  not 
liable  for  such  act.*  Where  the  official  bond  of  a  probate  judge 
w^as  conditioned  for  the  "  faithful  performance  of  his  official  du- 
ties," it  was  held  tliat  his  failure  to  make  a  proper  order  on  the 
final  report  of  an  administrator,  and  making  an  improper  order 
thereon,  were  a  breach  of  his  bond.^  The  sureties  on  the  official 
bond  of  a  justice  are  not  liable  for  his  failure  to  collect  a  note 
placed  in  his  hands,  when  by  the  use  of  due  diligence  he  might 

'  Gowing  V.  Cowgill,  12  Iowa,  495.  ^  Place  v.  Taylor,  22  Ohio  St.  317,  per 

See,  also,  on  this  subject,  State  r.  Lit-  Day,  J. 

tlefiekl,  4  Blackf.  (Ind.)129;  Howe  v.  *Doepfner  v.  The    State,   36  Ind. 

Mason,  12  Iowa,  202.  111. 

^Fox  V.  Meacham,  6  Nebraska,  530.  ^  Smith  v.  Lovell,  2  Montana,  332 


MONEY    EECEIVED    BY   JUSTICE.  623 

have  collected  the  same.'  "Where  a  statute  provided  that  the  bond 
of  a  justice  should  remain  in  force  for  five  years  after  the  office 
of  the  justice  expired,  it  was  held  that  no  action  could  be  main- 
tained on  the  bond  after  the  expiration  of  tliat  time,  and  that  the 
statute  was  not  a  statute  of  limitations  which  need  be  specially 
j)leaded.^ 

§  481.  "When  sureties  on  official  bond  of  justice  liable  for 
money  received  by  him. — Tlie  sureties  on  the  official  bond  of  a 
justice  are  liable  to  the  owner  of  a  judgm.ent  rendered  by  such 
justice,  and  entered  on  his  docket,  for  money  paid  to  and  collected 
by  such  justice  in  satisfaction  of  such  judgment,  even  though 
no  execution  has  been  issued  thereon.  "  The  money  was  paid  to 
the  justice  because  he  was  a  justice  of  the  peace,  and  because  he 
had  power  by  virtue  of  process  issued  from  his  court  to  enforce 
the  collection  of  the  same.  It  came  into  his  hands  by  virtue  of 
his  office,  and  the  sureties  as  well  as  himself,  are  liable  for  it."^ 
So  the  sureties  on  the  official  bond  of  a  justice  are  liable  for 
money  collected  by  him  in  his  official  capacity,  tliougli  it  is  col- 
lected without  suit  or  process."  Where  a  county  judge  has  au- 
thority to  receive,  and  does  receive,  money  paid  by  an  executor 
upon  claims  filed  and  allowed  against  an  estate,  the  sureties  on 
liis  official  bond  are  liable  for  his  failure  to  pay  the  same  over  to 
the  parties  entitled  thereto."  Certain  notes  were  placed  in  the 
hands  of  a  justice  for  collection,  and  he  received  and  receipted 
for  them  as  justice.  Afterwards  he  went  out  of  office,  and  did 
not  deliver  the  notes  to  his  successor,  as  it  was  his  duty  to  do, 
and  refused  to  surrender  them  to  the  owner  on  demand.  Held, 
he  and  the  sureties  on  his  official  bond  were  liable  for  his  act  in 
thus  refusing.^  Proceedings  were  commenced  before  a  justice,  the 
extent  of  whose  jurisdiction  was  $100,  to  recover  a  debt  less  than 
$100,  and  the  defendant  confessed  judgment  for  a  sum  exceeding 
$100,  which  was  paid  to  the  justice  without  any  execution  being 
issued.  Held,  the  sureties  on  the  official  bond  of  the  justice 
were  liable  for  the  money  thus  collected  by  him.^     Where  a  jus- 

'  McGrew  v.  The  Governor,  19  Ala.  Incl.  244;  Commonwealth  v.  Kendig, 

89.  2  Pa.  St.  448. 

2  The  People  v.  He)T,  81  111.  125.  «  Wrig-ht  v.  Harris,  31  Iowa,  272. 

'Brockett  r.  Martin,  11  Kansas,  378,  ^Latham  v.  Brown,   16  Iowa,  118; 

per  Valentine,  J.  Bessinger  v.  Dickerson,    20  Iowa,  260. 

^Ditmars  v.  The  Commonwealth,  47  '  Hale  v.  Commonwealth,  8  Pa.    St. 

Pa.  St.  335;  Widener  v.  The  State,  45  415. 


G24  SURETIES   ON   OFFICIAL    BONDS. 

tice  was  not  authorized  to  receive  money  as  security  for  the  ap- 
pearance of  a  pi'isoner  before  him  for  examination  on  a  criminal 
charge,  but  did  receive  it  and  refused  to  return  it  to  the  party 
entitled  thereto,  it  was  lield  that  the  sureties  on  his  official  bond 
were  not  liable  therefor/ 

§  482.  Ho^w  surety  on  official  bond  of  justice  affected  by  his 
death. — The  sureties  on  the  official  bond  of  a  justice  of  the  peace, 
conditioned  that  he  shall  well  and  truly  pay  over,  according  to 
law,  all  money  that  may  come  to  his  hands  by  virtue  of  his  office, 
are  liable  upon  failure  of  the  personal  representatives  of  the  jus- 
tice after  his  death  to  pay  over  upon  demand  money  that  came 
into  his  hands  officially  during  his  term  of  office."  A  justice 
having  failed  to  file  certain  appeal  papers,  as  his  duty  required, 
suit  was  brought  on  his  official  bond  against  him  and  his  sureties 
to  recover  damages  therefor.  After  the  service  of  the  process  in 
the  case,  the  justice  died.  His  death  was  pleaded  in  abatement 
of  the  suit  by  his  sureties,  and  it  was  claimed  that,  as  tlie  action 
was  founded  on  a  tort  by  the  justice,  his  sureties  were  not  liable. 
Held,  the  sureties  were  liable.  The  neglect  of  the  justice  was  a 
breach  of  the  bond,  and  the  action  being  on  a  contract,  did  not 
die  with  the  justice,  although  a  tort  had  to  be  proved  to  estab- 
lish a  breech.^ 

§  483.  Surety  of  sheriff  or  constable  liable  only  for  his  acts 
within  the  scope  of  his  authority  or  duty. — As  a  general  rule,  the 
sureties  of  a  sheriff  or  constable  are  only  liable  for  sucli  of  his 
acts  or  defaults  as  are  within  the  scope  of  his  autliority  or  duty 
as  such  officer.*  Thus,  where  tlie  defendant  in  a  writ  in  the  hands 
of  a  sheriff,  instead  of  giving  bail,  deposited  money  with  the 
sheriff,  and  afterwards  wished  to  surrender  himself,  and  demanded 
the  money  from  the  sheriff  which  he  refused  to  return,  it  was 
held  that  the  sheriff  had  no  right  to  receive  tlie  money  by  virtue 
of  his  office,  and  the  sureties  on  his  official  bond  were  not  liable 
therefor.^  The  sureties  on  a  sheriff's  official  bond  are  not  liable 
for  money  paid  to  him  by  a  judgment  debtor  after  the  return-day 

'  Cressy  v.  Gierman,  7  Minn.  398.  a  sheriff    agreed  with   a  plaintiff  in 

^  Peabody  r.  Ohio,  4  Ohio  St.  387.  replevin  that  he  would  sell  the  property 

^House  I'.  Fort,  4  Blackf.  (Ind.)  293.  in  litigation  in  the  replevin  suit  and 

*City  of  St.  Louis  t\  Sickles,  52  Mo.  keep  the  proceeds  to  answer  the  judg- 

122.  ment  in  that  suit,  see  Schloss  i\  White, 

'  State  V.  Long,  8  Iredell  Law  (Nor.  16  Cal.  65 

Car.)  415.    To  the  same  effect,  where 


SURETY   OF    SITEEIFF    OE    CONSTABLE.  625 

of  tlie  execution  held  by  the  sheriif,  for  he  has  then  no  authority 
to  receive  such  money,'  A  judgment  was  rendered  hj  a  justice 
and  the  defendant  therein  sold  a  constable  some  property,  and  the 
constable  agreed  to  j)ay  the  judgment,  to  which  the  creditor  con- 
sented. No  execution  was  issued  on  the  judgment,  and  the 
constable  did  not  pay  it.  Held,  the  sureties  on  his  ofhcial  bond 
were  not  liable  for  his  default  in  that  regard.^  The  sureties  on  a 
constable's  ofiicial  bond  are  not  liable  for  a  note  collected  by  him 
without  legal  process,  although  he  gave  a  receipt  for  the  note  as 
constable.^  An  attachment  was  levied  by  a  sheriff  on  property 
sufficient  to  satisfy  the  same,  but  the  sheriff  falsely  represented 
to  the  plaintiff  that  no  property  could  be  found,  and  thereby  in- 
duced the  plaintiff  to  sell  him  the  claim  in  suit  for  one-four- 
teenth of  its  face  value.  Held,  the  sureties  on  the  sheriff's  official 
bond  were  not  liable  fOr  his  acts  in  that  regard.  The  court  said 
such  sureties  were  not  liable  for  the  malfeasance  of  the  sheriff' 
unless  his  acts  also  amounted  to  misfeasance.*  A  statute  provided 
that  land  sold  on  execution  might  be  redeemed  within  a  certain 
time,  by  paying  to  the  clerk  of  the  court  the  amount  with  inter- 
est. A  party  wishing  to  redeem  land,  placed  the  money  in  the 
hands  of  the  sheriff.  Held,  the  sureties  on  his  official  bond  were 
not  liable  for  such  money. ^  A  constable's  official  bond  provided 
that  he  should  pay  over  all  the  sums  received  by  him  "  upon  any 
note,  account,  or  other  claim  placed  in  his  hands  for  collection." 
A  statute  also  provided  that  constables  should  be  liable  for 
claims  left  with  them  for  collection.  A  claim  greater  in  amount 
than  tlie  jurisdiction  of  any  of  the  inferior  courts,  was  placed 
in  a  constable's  hands  for  collection,  and  collected  by  him.  Held, 
the  sureties  on  his  bond  were  not  liable  for  the  sum  thus  collect- 
ed by  him,  as  it  was  not  an  official  act.®  But  where  a  sheriff 
held  an  execution  against  a  defendant,  and  demanded  $250  more 
than  was  dufe  on  the  same,  and  threatened  to  levy  if  it  was  not 
paid,  and  the  defendant  not  knowing  the  true  amount,  paid  the 
amount  demanded,  it  was  held  that  the  defendant  was  entitled  to 

'Thomas  i).  Browder,  33  Texas,  783;  "'The  Governor  t;.  Hancock,  2  Ala. 

Forward  v.  Marsh,  18  Ala.  645;  see,  728. 

also,   with  reference    to  this  subject,  ^  Sample  v.  Davis,  4  Greene  (Iowa) 

McGehee  v.  Gewin,  25  Ala.  176.  117. 

'^Hill  ?'.  Kemble,  9  Cell.  71.  ^Commonwealth    r.     Sommers,     3 

2  United  States «;. Cranston,  3  Cranch,  Bush  (Ky.)  555. 
289. 

40 


G2G  SUKETIES   ON   OFFICIAL   BONDS. 

recover  the  $250  back  from  the  sheriff,  and  the  sureties  on  his 
official  bond.' 

§  484.  Liability  of  surety  of  sheriff  or  constable  for  his  act  in 
seizing  property. — The  Sureties  of  a  sheriff  or  constable  are  liable 
for  his  acts  in  seizini^  property  which  are  done  virtute  officii,  but 
whether  or  not  thej  are  liable  for  his  acts  done  colore  officii,  is  a 
matter  concerning  which  there  is  great  conflict  of  authority.  The 
difference  between  such  acts  has  been  thus  stated:  "Acts  done 
mtutc  officii  are  where  they  are  within  the  autliority  of  tlie  officer, 
but  in  doing  them  he  exercises  that  authority  improperly,  or 
abuses  the  confidence  which  the  law  reposes  in  him;  wliilst  acts 
done  colore  officii  are  where  they  are  of  such  a  nature  that  his 
office  gives  him  no  authority  to  do  them.'"'  Where  a  sheriff, 
having  an  execution  against  the  goods  and  chattels  of  one  person, 
levied  on  and  sold  the  goods  of  another,  it  was  held  that  the  act 
was  not  done  by  virtue  of,  but  by  color  of  the  sheriff's  office,  and 
the  sureties  on  the  sheriff's  official  bond  were  not  liable  therefor. 
The  court  said  the  sheriff  w\as  simply  a  trespasser,  the  same  as  if 
he  had  had  no  writ.  Tlie  taking  of  the  goods  was  not  an  official 
act.  "  Official  acts  are  tliose  which  are  done  by  virtue  of  the 
office,  such  as,  if  properly  done,  exculpate  both  the  officer  and  his 
sureties  from  responsibility,  but  which,  if  neglected  or  improper- 
ly done,  render  both  liable.  If  the  authority  is  exceeded  or  the 
duty  omitted,  an  action  may  be  maintained  against  the  officer  in 
his  official  capacity,  and  his  sureties  held  responsible  for  it.  Un- 
official acts  are  such  as  are  committed  under  color  of  the  office, 
such  as  cannot  be  lawfully  done,  and  cannot  be  justified  by  the 
official  character  of  the  sheriff,  or  by  any  process  in  his  hands."  * 
On  the  other  hand  it  has  been  held  that  the  sureties  on  the  official 
bond  of  tlie  sheriff  are,  under  the  above  circumstances,  liable  for 
his  acts.  In  such  a  case,  it  was  said  that  "  The  sheriff  received 
the  process  in  virtue  of  his  office.  His  sureties  undertook  that 
he  should  well  and  truly  execute  the  process.  This  he  failed  to 
do,  to  the  injury  of  the  plaintiff."  The  case  was  different  from 
what  it  would  have  been,  if  he  had  had  no  writ.     "  In  that  case 

*     he  would  act  in  his  own  ricfht,  and  mig^ht  be  resisted  asanv 

'  Snell  V.  The  State,  43  Ind.  359.  224,  per  Haines,  J.    Contra,  with  refer- 

''Per  Cole,  J.  in  Gerber  v.  Ackley,  ence  to  an  attachment,  People  r.  Scbuy- 

37  Wis.  43.  ler,  4  New  York,  173,  overruling  Peo- 

8  State  V.  Conover,  4  Dutcher  (N.  J.)  pie  v.  Schuyler,  5  Barb.  (N.Y.)  166. 


MEASURE  OF  DAMAGES  FOR  BREACH  OF  SHERIFF'S  DUTIES.       627 

wrong  doer.  In  tlie  present  lie  was  put  in  motion  by  legal  au- 
thority invoked  in  behalf  of  others,  and  could  compel  the  power 
of  the  county  to  aid  him  in  its  execution.  His  official  character 
would  forbid  opposition."^  "Where  a  sheriff  wrongfully  seizes 
property  without  color  of  process,  the  sureties  on  liis  official  bond 
are  not  liable  for  his  acts  in  that  regard.^  A  constable  had  in  his 
hands  an  execution  against  principal  and  surety,  which  it  was  by 
law  his  duty  to  levy,  first  on  the  property  of  the  principal,  and 
he  levied  on  sufficient  property  of  the  principal  to  satisfy  the 
same,  but  allowed  the  property  to  be  wasted,  and  then  levied  on 
property  of  the  surety.  In  a  suit  by  such  surety  against  the 
sureties  on  the  constable's  official  bond,  it  was  held  that  the  levy 
on  the  property  of  the  principal  was  a  satisfaction  of  the  judg- 
ment, and  the  constable  had  no  right  to  levy  on  the  property  of 
the  surety,  but  as  he  did  so  by  color  of  his  office,  the  sureties  on 
his  official  bond  were  liable  therefor.^  "WTiere  a  constable  took 
goods  on  a  writ  directed  to  him,  but  which  he  had  no  authority 
to  serve,  by  reason  of  the  damages  laid  in  the  writ  being  so  great,  it 
was  held  to  be  an  act  done  under  color  of  his  office,  for  which  the 
sureties  on  his  official  bond  were  liable.*  It  has  been  held  that 
the  sureties  on  a  constable's  official  bond  are  liable  for  his  acts  in 
seizing  on  execution  property  which  is  exempt  therefrom.^  A 
sheriff,  knowing  that  certain  goods  had  beenmanufictured  in  the 
state,  and  that  no  license  fee  was  required  for  them,  seized  the 
goods,  as  he  would  have  been  authorized  to  do  if  they  had  been 
manufactured  out  of  the  state,  but  whicli  he  had  no  authority  to 
do  as  the  facts  were.  Held,  the  sureties  on  his  official  bond  were 
not  liable  for  his  acts  in  making  such  seizure.^ 

§  485.  Measure  of  damages  for  breach  of  duty  of  sheriff  with 
reference  to  process,  etc. — As  a  general  rule,  the  debt  due  the 
plaintiff  is  prima  facie  evidence  of  the  extent  of  the  injury 
which  he  has  sustained  by  a  sheriff's  breach  of  duty  in  regard  to 

J  Holliman  v.  Carroll,  27  Texas,  23,  ^  The  State  v.  Druly,  3  Ind.  431. 

per  Wheeler,  C.  J.     To  the  same  ef-  *  City  of  Lowell  v.  Parker,  10  Met. 

feet,  with  reference  to  an  attachment,  (Mass.)  309. 

see  Charles  ?;.  Haskins,  11  Iowa,  329.  ^  State    v.     Farmer,  21    Mo.    160; 

2  State  t'.  Mann,  21   Wis.  6S4.     To  Strmik  r.  Ocheltree,  11  Iowa,  15S. 

the  same  effect,  with  reference  to  the  ^  State  v.  Brown,  11  Ired.  Law  (Nor. 

sureties  of  a  village  marshal,     who  Car.)  141. 
had  the  powers  of    a  constable,  see 
Gerber  v.  Ackley,  32  Wis.  233. 


628  SUKETIES   ON    OFFICIAL   BONDS. 

the  service  and  return  of  process,  but  it  may  usually  be  shown, 
in  mitigation  of  damages,  that  the  plaintiff  has  been  injured  but 
little,  or  not  at  all,  and  the  actual  injury  is  in  such  case  usually 
the  measure  of  damages.^  A  sheriff  arrested  the  defendant  in  a 
civil  suit,  who  gave  bail.  The  bail  was  excepted  to  but  did  not 
justify,  and  in  consequence  thereof  the  sheriff,  by  reason  of  a 
statutory  provision,  became  liable  as  bail.  Held,  the  sureties  on 
his  official  bond  were  liable  for  the  amount  the  debtor  owed,  and 
it  made  no  difference  that  the  debtor  had  all  the  time  been  insol- 
vent. The  court  said  the  sheriff  M^as  liable  as  bail,  and  that  bail 
are  liable  for  the  full  amount  of  the  debt  if  they  fail  to  produce 
the  principal,  even  though  the  principal  has  all  along  been  in- 
solvent.^ Where  an  act  of  the  legislature  made  the  sheriff  liable 
for  the  amount  of  tax  executions  if  he  failed  to  return  them  with- 
in the  time  limited  by  law,  it  was  held  that  he  and  the  sureties 
on  his  official  bond  were  liable  for  the  full  amount  of  tax  execu- 
tions not  returned,  even  though  the  defendants  therein  were  in- 
solvent.^ It  has  been  held  that  when  an  execution  is  placed  in 
the  hands  of  a  sheriff',  the  presumption  of  law,  in  the  absence  of 
evidence,  is  that  he  levied  it  before  the  return  day  and  made  the 
mone}^,  because  it  was  his  duty  to  do  so,  and  the  law  would  pre- 
sume he  did  his  duty." 

§  486.  Liability  of  surety  on  sheriff's  ofHcial  bond  to  surety 
for  debt  who  is  injured  by  sheriff  's  acts. — It  has  been  held,  that  if 
sureties  for  a  debt  are  compelled  to  pay  it  by  reason  of  the  neg- 
lect of  the  sheriff  to  collect  it  from  the  principal,  they  will  have 
a  right  of  action  against  the  sheriff  and  the  sureties  on  his  official 
bond  for  the  damage  thus  suffered."  A  deputy  sheriff  seized  and 
sold  under  a  junior  execution  property  of  the  principal,  which 

'Taylor  v.   Johnson,    17    Ga.    521;  amount  of  tlie  debt,  even  though  the 

oveiTuhng  Crawford  r.  Word,  7  Ga.  defendant  is  insolvent;  Taylor  v.  John- 

445;  see,  also,  Dobbs  v.  The  Justices,  son,  17  Ga.  521. 

17  Ga.  624;  Treasurers  v.   Hilliard,  8  "People  v.   Dikeman,  3  Abb.  Eop. 

Ricliardson    Law  (So.  Car.)  412;  Car-  Om.  Cas.  520. 

penter  v.  Doody,  1  Hilton  (N.Y.)  46 j;  °  Treasurers  v.  Hilliard,  8  Richard- 

To  the  same  effect,  where  a  sherifi'and  son  Law  (So.  Car.)  412. 

the  sureties  on  his  official  bond  are  sued  ^O'Bannon  v.  Saunders,  24  Gratt. 

for  an  escape  on  mesne  process,  see  (Va.)  138. 

Crawford  v.  Andrews,  6  Ga.  244.     But  ^Bank  of  Pennsylvania  r.  Potius.  10 

it  seems  that,  for  an  escape  on  final  Watts  (Pa.)  148;  co»<r«.  State  r.  Rey- 

process,  the  sheriff  and  the  sureties  on  nolds,  3  Mo.  70. 
his  official  bond  are  liable  to  the  full 


MISCELLANEOUS   CASES    CONCEKNING   SURETIES    OF    SHEKIFF.    629 

should  Lave  been  sold  under  a  prior  execution,  in  wliicli  a  surety 
was  also  bound.  The  surety  sued  the  sheriff  and  the  sureties  on 
his  official  bond  for  resulting  injuries,  and  it  was  held  he  was  en- 
titled to  recover  such  damages  as  he  had  suffered  thereby.^ 

§  487.  Miscellaneous  cases  as  to  liability  of  sureties  on 
official  bonds  of  sheriff  or  constable. — The  sureties  on  a  sheriff's 
official  bond,  are  liable  for  the  acts  of  his  deputy,  even  though 
there  is  no  provision  in  the  bond  to  that  effect,  for  the  act  of  the 
deputy  is  the  act  of  the  sheriff?  Where  a  deputy  sheriff  collects 
money  on  execution,  and  neglects  or  refuses  to  pay  the  same  over, 
the  remedy  of  the  party  injured  is  by  action  against  the  sheriff 
and  the  sureties  on  his  official  bond,  and  not  against  the  deputy 
and  his  sureties.^  It  has  been  held  that  the  return  of  a  sheriff 
that  he  has  levied  a  certain  amount  on  an  execution,  is  an  official 
act,  which  renders  his  sureties  liable  for  the  amount  so  returned, 
although  the  sureties  offer  to  prove  that  the  amount  was  not 
levied."  A  statute  provided  that  judgments  on  bonds  payable  to 
the  state,  should  bind  the  real  estate  from  the  commencement  of 
the  action.  Held,  the  surety  on  a  sheriff's  official  bond  was  a 
debtor  within  the  meaning  of  the  statute.*  The  sureties  on  a 
sheriff's  official  bond,  are  not  entitled  to  notice  of  the  default  of 
their  principal,  in  order  to  render  them  liable  for  such  default.* 
Where,  with  a  full  opportunity  of  obtaining  knowledge  on  the 
subject,  the  surety  on  a  constable's  official  bond  voluntarily  paid 
money  which  the  constable  had  collected,  it  was  held  he  could  not 
recover  the  same  back,  even  though  he  was  not  actually  liable  on 
the  bond.''  Where  a  constable  collected  money  on  execution,  and 
the  plaintiff  in  execution  permitted  him  to  use  it  upon  his  agree- 
ment to  pay  interest,  it  was  held  that  the  sureties  on  his  official 
bond,  were  not  thereafter  liable  for  the  monej^  so  collected.^  But 
it  has  been  held  that  the  sureties  on  a  constable's  official  bond  are 

'Stanton  «;.  The  Commonwealth,  2  *  Shane  v.  Francis,  30  Ind.  92. 

Dana  (Ky.)  397.     Holding  that  a  sher-  «  Dougherty  v.  Peters,  2  Robinson 

iff  who  neglects  to  make  a  debt  out  of  (La.)  534.     To  the   same  effect,  with 

the  principal  when  he  can  do  so,  is  lia-  reference  to  the  sureties  of  a  deputy 

ble  to  the  surety  for  such  neglect,  see  sheriff,  McGehee  v.   Gewin,  25   Ala. 

HiU  0.  Sewell,  27  Ark.  15.  176. 

'•^  Crawford  v.  Howard,  9  Ga.  314.  '  Ferguson  v.  Hirsch,  54  Ind.  337. 

3  Brayton  v.  Towns,  12  Iowa,  346.  « Hill  v.  Kemble,  9  Cal.  71. 

^  Commissioners  v.  Mayrant,  2  Bre- 
vard (So.  Car.)  228. 


630  SURETIES   ON   OFFICIAL    BONDS. 

not  discharged  from  liability  for  money  collected  by  liim,  by  rea- 
son of  the  fact  that  the  creditor,  without  consideration,  consented 
to  a  delay  in  payment  on  the  part  of  the  constable.'  The  fact 
that  a  constable  is  prevented  by  sickness  from  levying  an  execu- 
tion which  it  is  his  duty  to  levy,  is  no  excuse  either  for  him  or 
the  sureties  on  his  ofRcial  bond.^  A  judgmeiit  was  rendered 
against  A,  and  an  execution  was  put  into  the  hands  of  the  sheriff, 
who  collected  the  money  from  A,  The  judgment  was  afterwards 
reversed,  but  before  such  reversal  the  sheriff  died  without  pay- 
ing the  money  over.  After  the  judgment  was  reversed,  A  sued 
the  sureties  on  the  sheriff's  official  bond  for  the  money  collected 
by  the  sheriff.  Held,  they  were  not  liable.  The  sheriff  collected 
the  money  legally,  and  up  to  the  time  of  his  death,  was  guilty 
of  no  default.' 

§  488.  Action  against  sureties  on  siierifl's  official  bond. — 
Where  a  sheriff's  official  bond  is  joint  and  several,  suit  thereon 
may  first  be  brought  against  one  of  the  sureties  alone,  without 
joining  the  sheriff  as  a  defendant  in  such  suit.*  Where  there 
lias  been  a  breach  of  the  condition  of  a  sheriff's  official  bond,  the 
sureties  are  liable  thereon  in  the  first  instance,  without  the  sher- 
iff being  previously  fixed  by  suit  against  him  alone.^  A  recovery 
against  a  sheriff  alone,  without  satisfaction,  for  a  matter  which 
constitutes  a  breach  of  his  official  bond,  is  not  a  bar  to  a  subse- 

'  Boice  V.  Main,  4  Denio,  55.  Holding  that  the  sureties  of  a  sheriff 

^  Freudenstein    v.   McNier,   81    III.  are  not  liable  for  the  proceeds  of  real 

208.  estate,  when  the  sheriff,  according  to 

^  State  V.  Vananda,  7  Blackf.  (Ind.)  the  provisions  of  a  statute,  acts  as  an 

214.    Holding  the  sureties  of  a  sheriff  administrator,  see  Heeter  v.  Jewell,  6 

who  has  died,  liable  for  acts  of  an  vm-  Bash  (Ky.)  610.     Holding  that,  in  de- 

der  sheriff  done  subsequent    to    the  termining  the  liability  .of  a  constable 

death  of  the  sheriff",  see  •  Newman  v.  and  the  sureties  on  his  official  bond, 

Beckwith,  5  Lansing  (N.Y.)  80.  Hold-  the  statute  in  force  at  the  time  must  be 

ing  that  the  official  bond  of  a  sheriff  regarded  as   part  of  the  contract  be- 

who  still  acts,  covers  his  acts  done  af-  tween  them  and  the  public,  see  Freu- 

tsr  his  office  might  have  been  declared  denstein  v.   McNier,  81  III.  208.     To 

vacant,  see  Vann  v.  Pipkin,  77  Nor.  the  effect  that  the  sureties  on  a  consfa- 

Car.  408.     Holding  the  sureties  on  a  ble's  official  bond  are  liable  thereon, 

constable's  bond  liable  for  his  failure  although  the  bond  is  not  accepted  as 

to  return  an  execution,  see  Carpenter  required  by  law,  see  Heath  r.  Shrempp, 

V.  Doody,  1  Hilton  (N.Y.)  465.     Hold-  22  La.  An.  167. 

ing  that  one  surety  on  a  constable's  ^Governor  «.  Perkins,  2  Bibb  (Ky.) 

official  bond  cannot,  as  relator,  sue  the  395. 

other  sureties  on  the  bond,  see  Sanders  ^  Smith   r.   Commonwealth,  59  Pa. 

»;.  Bean,  Busbee's  Law  (Nor.  Car.)  318.  St.  320. 


SURETY  ON  DErUTY  SHEKIFf's  BOND.  631 

qiient  suit  against  liim  and  liis  sureties  on  the  bond.'  The  sure- 
ties of  a  sheriff,  after  recoveries  have  been  had  against  them  to 
the  amount  of  tlicir  bond,  may  defend  themselves  at  law  on  that 
ground  against  all  pending  and  future  suits,  and  therefore  cannot 
come  into  equity  to  enjoin  such  suits.'^ 

§  489.  Liability  of  surety  on  deputy  sheriff's  official  bond. — 
It  is  no  defense  to  the  sureties  on  the  official  bond  of  a  deputy 
sheriff,  that  before  the  alleged  default  of  the  deputy  he  had  be- 
come insolvent,  in  consequence  of  which  the  sureties  requested 
the  sheriff  to  remove  him  from  bis  office,  which  the  sheriff  failed 
to  do.'  If  a  sheriff  pays  to  a  plaintiff  the  amount  of  an  execu- 
tion then  in  force  in  the  hands  of  his  deputy,  and  the  deputy 
afterwards  collects  it  from  the  defendant  in  execution,  the  sureties 
on  the  deputy's  official  bond  are  liable  if  he  fails  to  account  for 
it."  The  sureties  on  a  deputy  sheriff's  official  bond  may  plead 
anything  which  their  principal  could  plead  in  denial  of  his  lia- 
bility on  the  bond.^  The  sureties  on  the  official  bond  of  a  deputy 
sheriff  are  liable  for  taxes  collected  by  him  in  his  official  capac- 
ity, when  the  sheriff  is  by  law  collector  of  taxes." 

§  490.  Whether  joint  guardians  or  administrators  are  sureties 
for  each  other,  etc. — Where  there  are  several  guardians  of  an  in- 
fant's estate,  who  have  given  a  joint  and  several  bond  with  sure- 
ties for  their  good  behavior,  the  guardians  may  act  either  sepa- 
rately or  in  conjunction.  They  are  jointly  responsible  for  joint 
acts,  and  each  is  separately  answerable  for  his  separate  acts  and 
defaults.  Such  guardians  are  not  by  reason  of  having  given  the 
bond  aforesaid,  nor  for  any  cause,  sureties  of  each  other,  but  the 
sureties  on  their  bond  are  liable  for  their  joint  defaults,  and  for 
the  default  of  each.'  But  it  has  been  held,  that  where  two  per- 
sons, administrators  of  the  same  esta,te,  join  in  executing  a  bond 
with  others  as  their  sureties,  each  of  such  administrators  will  be 
held  as  surety  for  the  other.^     Two  guardians  Avere  ap])ointed 

'Treasurers  i\   Sureties  of  Oswald,  "Andrusr.   Bealls,  9   Cowen,   693- 

2  Bailey  Law  (So.  Car.)  214;  Charles  Barnard  v.  Darling'.  11  Wendell,  28. 

V.  Haskins,  11  Iowa,  329.  *McGehee  v.  Gewin,  25  Ala.  17G. 

2Bothwell  V.   Sheffield,   8  Ga.  569.  »  VValJace  t^.  Holly,  13  Ga.  389. 

Holding  that  the  sureties  on  a  sheriff's  *  Wood  v.  Cook,  31  111.  271. 

official  bond  ai-e  not  entitled  to  notice  'Kirby  v.   Turner,  Hopkins  Ch.  R. 

on  a  summary    application    under  a  (N.Y.)  309. 

statute    for  judgment    against    such  *  Moore  ij.  The  State,  49  Ind.  558. 
sheriff  and  sureties,  see  Reid  v.  Jack- 
son. 1  Ala.  207. 


632  SURETIES  ON  OFFICIAL  BONDS. 

by  a  court  of  diancerj,  and  gave  bond  with  surety  tbat  tliey  would 
faithfully  execute  the  trusts  respectively  reposed  in  them,  according 
to  the  terms  of  the  orders  appointing  them.  One  of  them  died, 
and  it  Avas  held  that  the  trusts  survived,  and  that  the  surety  was 
responsible  for  the  subsequent  acts  of  the  surviving  guardian.* 

§491.  Action  against  surety  on  guardian's  bond. — A  suit 
against  the  sureties  on  a  guardian's  bond  is  not,  it  seems,  sustain- 
able without  a  previous  liquidation  of  the  amount  due  from  the 
guaj'dian.^  A  ward  may  sustain  a  suit  in  equity  for  an  account 
against  his  guardian  and  the  sureties  on  the  guardian's  official 
bond.  Equity  has  always  entertained  jurisdiction  between  guar- 
dian and  ward  for  an  account,  and  "jurisdiction  as  to  the  guar- 
dian will  draw  with  it  the  surety."  ^  It  has  been  held  that  if 
the  final  decree  in  such  a  case  is  for  the  payment  of  money,  the 
decree  should  be  so  framed  as  to  be  enforced  against  the  sureties 
in  the  event  only  that  the  money  cannot  be  made  out  of  the  prin- 
(ii-pnl.* 

§  493.  Discharge  of  surety  of  guardian  by  order  of  court,  etc. 
— Important  questions  frequently  arise  with  reference  to  the  dis- 
charge of  sureties  on  a  guardian's  bond  by  the  action  of  a  court, 
proceeding  under  statutory  authority.  Thus,  a  statute  provided 
that  by  certain  proceedings  the  court  of  ordinary  might  discharge 
a  guardian's  bond,  and  cause  new  sureties  to  be  substituted.  This 
was  done,  and  it  was  held  that  such  discharge  only  released  the 
sureties  on  the  first  bond  from  liability  for  defaults  of  their  prin- 
cipal occurring  subsequent  to  such  discharge.  The  court  said 
that  the  legislature  could  not  authorize  any  further  discharge,  for 
to  do  so  would  be  to  impair  contracts  and  destroy  vested  rights.* 
It  has  been  held  that  the  discharge  of  one  of  several  sureties  of 
a  guardian  under  such  a  proceeding,  being  an  act  of  law,  does 
not  discharge  the  other  sureties  on  the  same  bond.*  A  statute 
authorized  the  county  court  to  discharge  the  sureties  on  guar- 
dians' bonds  under  certain  circumstances,  and  to  take  other  good 
and  sufficient  sureties.     The  county  court  on  proi3er  proceedings, 

^  The  People  v.  Byron,  3  Johns.  Cas.  See,  also,  Wann  v.  People,  57  111.  202 

2Stilwelli?.TVIills,10Johns.  304;.Sal-  Contra,  State  v.  Humphreys,  7  Ohio, 

isbury  v.  VanHoesen,  3  Hill  (N.Y.)  77;  224. 

Bowman  v.  ExVs  of  Herr,    1   Pen.  &         ^Hutchcraft  v.  Shrout,  1  T.  B.  Men. 

Watts  (Pa.)  282;  Sebastian  v.  Bryan,  (Ky.)  206. 

21  Ark.  447;  Critchett  v.  Hall,  56  New         *  Hendry  r.  ClarJy,  8  Fla.  77. 

Hamp.   324.     Sustaining'    same   view,         ^  Justices  v.  Woods,    1   Kelly  (Ga.) 

see  Hunt  p.White,  1  Ind.  (Carter),105;  84. 

Bailey  v.  Rogers,  1  Greenl.  (Me.)  186.         ego^jj  ^_  Q^^uit,  3  Bush  (Ky.)  644. 


SUEETY    OF    GUAEDIAN.  633 

ordered  certain  sureties  of  a  guardian  to  be  released,  and  took  a 
new  bond  with  bad  sureties.  Held,  the  fact  that  the  sureties  in 
the  last  bond  were  bad  did  not  invalidate  the  discharge  of  the 
first  sureties.^  The  court  of  common  pleas  ordered  a  guardian  to 
pay  the  money  of  his  Avard  to  the  clerk  of  the  county  court  upon 
his  resigning  his  guardianship.  The  statute  did  not  make  it  one 
of  the  duties  of  the  county  clerk  to  receive  money  thus  paid. 
The  clerk  converted  the  money  to  his  own  use,  and  it  was  held 
that  the  guardian  and  his  sureties  were  liable  to  the  ward  for  the 
money,  notwithstanding  such  payment  to  the  clerk.^ 

§  493.  Liability  of  surety  of  guardian — Miscellaneous  cases. 
— Where  money  was  paid  to  a  guardian,  as  such,  to  which  his 
wards  were  not  entitled,  the  same  being  paid  by  mistake,  it  was 
held  that  the  sureties  of  the  guardian  were  not  liable  to  any  one 
on  account  of  such  monev.^  A  mother  died  intestate,  leaving 
personal  property,  and  no  letters  of  administration  were  taken 
out  on  her  estate.  The  guardian  of  her  children  took  possession 
of  her  property  and  realized  from  it  a  certain  sum.  Held,  the 
sureties  on  the  guardian's  bond  were  liable  for  the  proper  appli- 
cation of  such  sum.*  It  has  been  held  that  the  estate  of  a  surety 
on  a  guardian's  bond  is  liable  for  a  default  of  the  guardian  which 
occurred  subsequent  to  the  death  of  the  surety.^  A,  the  benefi- 
ciary in  a  guardian's  bond,  gave  an  order  to  B  on  the  guardian  C, 
which  was  accepted  but  not  paid  by  C.  Held,  this  did  not  dis- 
charge the  sureties  of  the  guardian  from  liability  for  the  amount." 
The  liability  of  the  surety  in  a  guardian's  bond  is  not  limited 
to  property  owned  by  the  ward  at  the  time  the  bond  is  executed, 
but  (the  terms  of  the  bond  being  sufficiently  general  for  that 
purpose)  extends  to  property  subsequently  acquired  by  the  ward, 
which  comes  to  the  guardian's  hands.^  A  guardian  was  ap- 
pointed by  a  court  not  having  jurisdiction  in  tlie  special  case 
(because  the  ward  did  not  reside  in  that  county),  and  in  good 
faith  received  money  belonging  to  the  ward  and  afterwards 
settled  his  account  in  the  proper  court.     Held,  he  and  the  sure- 

^  Crawford  v.  Penn,  1  Swan  (Tenn.)  ^  Warwick  v.  The  State,  5  Ind.  350. 

'388.    To  similar  etFect,  see  Hamner  v.  ^Voris  v.  The  State,  47  Ind.  345. 

Mason,  24  Ala.  480.     See,  also,  on  this  ^  Bond  v.   Eay,  5  Humph.  (Tenn.) 

subject,  McGehee  v.  Scott,  15  Ga.  74.  492. 

2  The  State  v.  Fleming-,  46  Ind.  206.  '^  Gray  r.  Brown,  1  Richardson  Law 

3  Ballard  r.  Brummitt,  4  Strobh.  Eq.  (So.  Car.)  351. 
(So.  Car.)  171. 


034:  SURETIES    ON    OFFICIAL   BONDS. 

tics  on  his  bond  were  estopped  to  deny  liis  liability  for  the  money 
so  received  and  accounted  for.' 

§  49-i.  When  surety  of  executor  or  administrator  not  liable 
till  devastavit  established  by  suit  against  principal. — Although 
there  is  a  conflict  among  the  cases,  the  weight  of  authority  seems 
to  be  that  in  the  absence  of  a  statute  on  the  subject,  the  sureties 
on  the  ofiicial  bond  of  an  executor  or  administrator  are  not  liable 
to  suit  thereon  until  a  judgment  has  been  recovered  against  the 
executor  or  administrator  in  his  official  capacity,  and  also  another 
judgment  against  him  personally,  establishing  a  devastavit.  The 
reason  given  for  these  decisions  is,  that  the  liabilityof  such  sureties 
is  contingent  and  not  direct,  and  it  would  be  unjust  to  allow  them 
to  be  called  upon  until  it  is  established  that  their  principal  has 
been  guilty  of  wrong  doing  in  his  office.^  It  has  been  held  that 
the  settlement  of  a  general  account  by  an  executor,  disclosing  a 
general  balance  in  his  hands,  does  not  fLx  the  executor  so  as  to  en- 
able a  distributee  to  maintain  an  action  on  the  executor's  official 
bond.  Such  balance  may  be  required  to  liquidate  other  claims,' 
So  it  has  been  held  that  a  judgment  confessed  by  an  administra- 
tor, upon  which  no  execution  has  been  issued,  is  not  sufficient  to 
charge  the  sureties  on  his  official  bond.  If  an  execution  had  been 
issued,  property  to  satisfy  the  same  might  have  been  found."  It 
lias  also  been  held  that  a  decree  in  chancery  against  an  executor 
or  administrator,  directing  him  to  pay  a  debt  of  his  testator  or 
intestate,  out  of  the  assets  of  the  estate  in  his  hands,  where ^eri 
facias  has  been  issued  on  such  decree,  and  returned  nulla  hona,  is 
not  sufficient  evidence  of  a  devastavit  to  authorize  an  action  against 
the  sureties  on  the  official  bond  of  the  executor  or  administrator.^ 
On  the  other  liand,  it  has  been  held,  that  after  a  judgment  has 

>  McClure  v.  Commonwealth,  80  Pa.  ''Justices  v.  Sloan,  7  Ga.  31;  Myers 

St.  167.     To  the  effect  that  a  surety,  v.   Fretz,  4  Pa.  St.  344;  Cameron  v. 

who  becomes  bound  for  a  g-uarJian  in  The  Justices,  1  Kelly  (Ga.)  36;  Catlett 

one  county,  is  not  bound  after  the  guar-  v.  Carter's  Exrs.  2  Munf,  (Va.)    24. 

dian  leaves  such  county,  and  has  the  See,  also.   Treasurer  of  Pickaway  v. 

guardianship  transferred  to    another  Hall,  3  Ohio,  225.     Eaton  t'.  Benefield, 

county,   see  Justices  v.  Selraan,  6  Ga.  2  Blackf.  (Ind.)  52. 

482.     Holding  the  liability  of  a  surety  ^Commonwealth  v.  Stub,   11  Pa.  St. 

on  a  guardian's  bond  before  a  breach  of  150. 

the  condition  of  the  bond,  a  contingent  *  Lining  v.  Giles'   Ex'rs.,  3  Brevard 

liability,  which  is   discharged  by  the  (So.  Car.)  530. 

discharge  of  the  surety  in  bankrupt-  °Hairston  t?.  Hugaes,  3  Munf.  (Va.) 

cy,  sec  Pi,eitz  v.  The  People,  72  111.  435.  563. 


DEVASTAVIT   BY    EXECUTOR   OR   ADMINISTRATOR.  635 

been  obtained  against  an  executor  or  administrator  in  his  repre- 
sentative capacity,  and  execution  thereon  lias  been  returned  un- 
satisfied, lie  and  the  sureties  on  his  official  bond  may  be  sued  at 
once,  without  a  separate  suit  being  first  prosecuted  against  him 
alone,  and  that  all  will  be  liable  if  a  devastavit  on  his  part  is 
proved  by  any  evidence  satisfactorily  showing  the  fact.* 

§  495.  Cases  holding  surety  of  executor  or  admisintrator  liable 
•without  devastavit  being  first  estsblished  by  suit  against  princi- 
pal,— -Where  an  executor  dies  without  any  personal  rcj^resenta- 
tative,  it  has  been  held  that  a  court  of  ecpity  may,  at  the  suit  of 
a  legatee,  and  without  any  previous  suit  having  been  brought 
against  the  executor  to  convict  him  of  a  devastavit,  convene  tlie 
sureties  on  the  executor's  official  bond,  or  their  legal  representa- 
tives, and  the  persons  who  are  interested  in  any  estate  which  the 
executor  may  have  left,  and  make  the  sureties  liable  for  any  mis- 
application or  wasting  of  the  assets  which  may  be  established  in 
the  suit.  It  was  contended  that,  as  the  executor  was  dead,  and 
no  devastavit  could  be  established  by  suit  at  law  against  him,  the 
sureties  were  discharged.  But  the  court  said  that  the  circum- 
stances of  the  case  took  it  out  of  the  (i^eneral  rule.  The  rio;lit  ex- 
isted,  and  there  should  not  be  a  failure  of  a  remedy  for  want  of  a 
particular  kind  of  evidence.  All  that  was  necessary  under  the 
circumstances  was  that  the  devastavit  be  established  by  satisfac- 
tory evidence  showing  the  fact,^  So  it  has  been  held  that  when- 
ever an  executor  or  administrator  absconds,  conceals  himself,  or 
resides  beyond  the  jurisdiction  of  the  court,  an  action  will  lie  on 
his  official  bond  against  the  surety  thereon,  without  recourse  in 
the  first  instance  being  had  against  the  principal.  If  it  were 
otherwise,  by  collusion  with  the  principal  the  sureties  might  pre- 
vent ever  being  sued.^  An  administrator  settled  with  the  county 
court,  and  on  his  report,  was  ordered  to  pay  certain  amounts  to 
the  heirs,  which  he  tailed  to  do.  The  administrator  died,  and  as 
a  consequence,  no  demand  for  such  amounts  was  made  by  the 
heirs.  A  statute  required  that  a  demand  should  be  made  before 
an  administrator  should  be  chargeable  with  a  devastavit.     Held, 

'  Hobbs  V.  Middelton,  1  J.  J.  Marsli  ^  gpo(^(-g^;,,OQ(j  ^_  DanJriclge,  4  Munf. 

(Ky.)  176;  Clarkson v.  Commonwealth,  (Va.)  289. 

2  J.  J.  Marsh  (Ky.)   19;  Thomson   v.  ^ Commonwealth  r.Weurick.S  Watts 

Searcy,  6  Port.  (Ala.)  .393.     See,  also,  (Pa.)  159. 
on  this  subject,  Treasurer  of  Franklin 
Co.  V.  McEIvain,  5  Ohio,  200. 


636  SURETIES    ON    OFFICIAL    BONDS. 

in  a  suit  on  the  {i(lininisti'ator''s  ofiicial  bond  ao-ainst  the  sureties 
therein,  tliat  the  administrator  liaving  died,  no  demand  on  him  \vas 
possible,  and  the  sureties  were  liable  without  any  such  demand.' 
§  -iOO.  'When  surety  of  executor  or  administrator  concluded 
by  settlement  by  or  judgment  against  principal. — The  sure- 
ties on  the  official  bond  of  an  executor  or  administrator  are, 
as  a  general  rule,  conclusively  bound  by  a  final  settlement  made 
by  their  principal  with  the  probate  court,  and  by  a  decree  of  such 
court,  finding  assets  in  his  hands,  because  the  effect  of  the  terms 
of  their  bond  is  that  they  shall  be  so  bound."  A  party  having 
been  named  as  executor  of  a  will,  gave  bond  as  such,  and  entered 
upon  the  discharge  of  his  duties,  but  died  M'ithout  settling  his 
accounts  as  executor.  An  administrator  of  the  executor  was 
appointed,  who  settled  the  executor's  account  with  the  orphans' 
court,  and  there  was  thereupon  a  decree  by  such  court  that  the 
administrator  should  pay  a  legacy  to  be  levied  out  of  property  of 
the  executor.  Held,  the  sureties  of  the  executor  were  not  con- 
cluded by  the  settlement  made  by  the  administrator  with  the 
court,  because  it  was  as  to  them  res  inter  alias  acta.  The  court, 
however,  said  it  would  have  been  otherwise  if  the  settlement  had 
been  made  by  the  executor.^  It  has  been  held  that  a  settlement 
made  by  an  administrator  with  the  probate  court,  in  which  it  was 
found  that  the  estate  was  indebted  to  the  administrator  (such  set- 
tlement not  being  the  final  settlement),  was  not  a  final  and  con- 
clusive judgment  which  released  the  sureties  on  the  administra- 
tor's ofiicial  bond.*  It  has  been  held,  that  the  sureties  on  an  ad- 
ministrator's bond  may  show  that  before  the  commencement  of 
an  action  in  which  judgment  was  rendered  against  their  princi- 
pal, his  authority  as  administrator  had  become  extinguished,  and 
that  such  proof  will  relieve  the  sureties  from  liability  on  account 
of  such  judgment.^  It  has  been  held,  that  the  su4.'eties  on  the 
official  bond  of  an  administrator  are  not  liable  to  a  creditor  of 
the  estate  for  the  amount  of  a  judgment  obtained  by  such  credi- 

'The  People  v.  Admire,  39  lU.  251.  McCarter  (X.  J.)  527;  Casoni  v.  Je- 

''Stovall  V.  Banks,  10  Wallace,  588.  rome,  58  New  York,  315;  co«fr«,  Hayes 

For  applications  of  this  principle  to  va-  v.  Seaver,  7  Greenl.  (Me.)  237.     Hold- 

rious  cases,  see  Lucas  r.  Curry's  Exrs-  ing  such  decree  only  prima  facie  evi- 

2  Bailey  Law  (So.  Car.)  403;  Hobbs  v.  dence  agrainst  the  surety,  see  Lipscomb 

Middleton,    1  J.  J.  Marsh  (Ky.)   176;  r.  Postell,  38  Miss.  476. 

Boyd  V.  Caldwell,  4   Piichardson  Law  '  Gray  r.  Jenkins,  24  Ala.  510. 

(So.  Car.)  117;  Taylor  v.  Hunt's  Exr.  niusick  v.  Beebe,  17  Kansas,  47. 

31  Mo,  205;  Ordinary  v.   Kershaw,  1  *  Bourne  v.  Todd,  63  Me.  427. 


FIRST  AKD  SECOND  BOXD  OF  EXECUTOR.  637 

tor  in  an  action  against  tlie  administrator,  conimencecl  after  the 
claim  was  barred  Ly  tlie  statute  of  limitations,  and  in  which  ac- 
tion the  administrator  appeared  and  pleaded  the  statute,  but  was 
afterwards  defaulted.  Of  this  statutory  bar  the  court  said:  "  Its 
effect  is,  therefore,  controlling  and  decisive,  and  to  this  extent  the 
sureties  may  object  to  the  effect  of  a  judgment  against  their 
principal  when  sued  on  their  bond  to  the  judge  of  probate."  ^ 

§  497.  Liability  of  surety  on  first  and  second  bonds  of  exec- 
utor or  administrator. — Where  an  administrator  has  money  of 
the  intestate  in  his  hands  at  the  time  of  the  execution  of  a  second 
bond,  and  afterwards  converts  it  to  his  own  use,  the  sureties  on 
such  second  bond  are  liable  for  the  money  so  converted,  the  same 
as  if  it  had  been  collected  after  the  execution  of  the  second  bond.^ 
"Where  the  condition  of  an  administrator's  bond  was  that  he 
should  j)ay  over  whatever  money  should  be  coming  to  the  law- 
ful heirs  of  the  estate,  and  an  item  of  cash  received  by  the  admin- 
istrator before  the  execution  of  the  bond  appeared  on  the  inventory 
of  the  estate  at  the  time  the  bond  was  given,  it  was  held  that  the 
surety  on  the  bond  was  liable  for  such  cash  the  same  as  for  cash 
received  after  the  bond  was  executed.^  Where  the  sureties  on 
the  first  bond  of  an  administrator  were  upon  petition  properly 
released,  it  was  held  that  the  effect  of  the  release  was  to  make  the 
second  set  of  sureties  primarily  liable  to  the  extent  of  their  bond. 
If  they  proved  insufficient,  the  first  sureties  were  responsible  to 
the  date  of  their  release.  The  second  set  must  account,  first,  for 
any  default  after  their  suretyship  commenced,  and  then  for  any 
default  that  may  have  occurred  before.*  A  surrogate  ordered 
that  security  be  filed  by  an  executor  within  five  days,  in  default 
of  which  he  should  be  removed  from  office.  A  bond  was  accord- 
ingly filed,  pursuant  to  a  statute  conditioned,  among  other  things, 
that  the  exectltor  should  "obey  all  orders  of  the  surrogate  touch- 
ing the  administration  of  the  estate  committed  to  him."  Held, 
the  sureties  on  this  bond  were  liable,  not  only  for  all  sums 
received  by  the  executor  after  the  giving  of  the  bond,  but  also 
for  all  sums  misappropriated  by  him  before  that  time.  The  con- 
dition was  broken  whenever  the  executor  failed  to  pay  over  the 
money,  pursuant  to  the  decree  of  the  surrogate.^ 

1  Robinson  v.  Hodge,  117  Mass.  222.  ^Goode  v.  Burford,  14  La.  An.  102. 

To  a  similar  effect,  see  Gooldn  v.  San-  ^Morris  v.  Morris,  9  Heisk.  (Tenn.) 

born,  3  New  Hamp.  491.  814. 

^Owenv.  The  State,  25  Ind.  371.  ^Scliofield  r.  Hustis,   9  Hun,  157i 


638  SUKETIES   ON    OFFICIAL    BONDS. 

§  498.  Liability  and  rights  of  surety  of  two  executors  or 
administrators,  v^hen  one  dies  or  ceases  to  act. — Where  two  exe- 
cutors or  administrators  unite  in  one  bond,  they  are  jointly  and 
severally  liable  as  principals  to  indemnify  the  surety  on  their 
official  bond,  who  has  been  compelled  to  pay  money  for  the 
default  of  one  of  them.^  Where  there  were  two  administrators, 
and  one  of  them  removed  from  the  state,  and  proceedings  were 
had  in  the  county  court,  which  amounted  to  a  revocation  of  the 
letters  of  such  removing  administrator,  it  was  held  that  the  sure- 
ties on  the  joint  administration  bond  were  liable  for  the  subse- 
quent acts  of  the  remaining  administrator  during  the  time  of 
his  separate  administration.^  A  and  B  became  joint  administra- 
tors of  an  estate,  and  gave  a  joint  bond  as  such,  with  C  as  surety. 
Propertj^  came  into  their  hands,  and  A  died  before  any  devas- 
tavit was  committed.  All  the  property  then  came  into  B's  hands, 
and  he  became  sole  administrator,  as  the  law  provided,  and  after- 
wards committed  a  devastavit  and  died;  C  having  been  compelled 
to  pay  for  this  devastavit,  it  was  held  that  he  misfht  by  suit  in 
chancery,  recover  indemnity  from  the  estate  of  A.^ 

§  499.  Surety  of  administrator  not  liable  for  rents  nor  for  pro- 
ceeds of  sale  of  real  estate.— As  a  general  rule,  the  sureties  on  an  ad- 
ministrator's ofhcial  bond  are  not  liable  for  the  proceeds  of  the 
sale  of  real  estate  beloufjinci:  to  the  decedent.^  And  this  is  so,  even 
though  such  2^roceeds  are  charged  in  the  account  of  the  adminis- 
tration, as  settled  by  the  orphans'  court.^  So,  as  a  general  rule, 
such  sureties  are  not  liable  for  rents  of  the  real  estate  of  the  de- 
cedent accruing  after  his  death."  But  it  has  been  held  that  the 
sureties  on  an  administrator's  official  bond  are  liable  for  such 
rents  collected  by  him,  as  were  due  the  intestate  at  the  time  of 
his  death,  or  as  were  collected  by  the  administrator  upon  a  con- 
tract made  by  the  intestate,  which  passed  into  the»hands  of  the 
administrator.'' 

Holding    the    sureties    on     the    first  ^  Dobyns  r.  McGovern,  1-5  Mo.  662; 

bond  of  an  executor  liable  for  money  contra,  Brazier  v.  Clark,  5  Pick.  96. 
realized  from  the  said  of  land  for  the  •*  Commonwealth  p.  Hilgert,   55  Pa. 

payment  of  debts,  when  a  second  bond  St.  236;  Jones  v.  Hobson,  2  Randolph 

has  been  given  with  respect  to  such  (Va.)  483. 
money,  see  Reno  v.  Tyson,  24  Ind.  56.  ^  Commonwealth  v.  Gilson,  8  Watts 

'  Overton  v.  Woodson,  17  Mo.  453.  (Pa.)  214. 

« State  V.  Rucker,  59  Mo.  17.  « Smith  v.  Bland,  7  B.  Mon  (Ky.)  21. 

'  Wilson  V.  Unselt,  12  Bush  (Ky.)  215. 


SUKETY   FOE    EXECUTOE   OE   ADMINISTEATOE.  639 

§  500.  Sureties  of  administrator  only  liable  for  liis  of&cial 
misconduct. — An  administrator's  official  bond  only  binds  tlie 
sureties  therein  for  the  performance  of  his  duties  as  administra- 
tor. Where,  therefore,  npon  the  petition  of  an  administrator  and 
the  distributees  of  an  estate,  a  slave  was  ordered  to  be  sold  (which 
the  administrator,  as  such,  had  no  right  to  sell),  and  the  adminis- 
trator was  appointed  commissioner  to  make  the  sale,  it  was  held 
that  the  sureties  on  his  official  bond  were  not  liable  for  the  pro- 
ceeds of  such  sale  in  the  event  of  his  failure  to  pay  the  same 
over.^  The  sureties  of  an  administrator,  with  the  will  annexed, 
cannot  be  held  liable  for  funds  which  he  received,  not  as  adminis- 
trator, but  as  agent  for  the  widow  and  heirs,  though  he  has  chai-ged 
himself  with  such  funds  as  administrator."  The  heirs  of  an  es- 
tate agreed  among  themselves  that  the  estate  should  be  sold  on 
credit,  and  notes  taken  for  it  "  indorsed  to  the  satisfaction  of  the 
administrator,"  so  that  the  estate  might  be  divided,  and  an  ordei 
of  court  was  entered  to  that  effect.  The  administrator  sold  the 
estate,  but  did  not  take  good  indorsers.  Held,  the  sureties  on 
his  official  bond  were  not  liable  for  his  default  in  that  regard,  as 
it  was  no  part  of  his  official  duty  to  take  such  notes.^ 

§  501.  Miscellaneous  cases  holding  surety  of  executor  or 
administrator  liable. — The  sureties  on  the  official  bond  of  an  ad- 
ministrator are  liable  for  the  increased  value  of  land  purchased 
by  him  with  funds  of  the  estate,  on  the  principle  that  a  trustee 
shall  make  nothing  by  the  trust  fund.''  An  administrator  pur- 
chased certain  real  estate  of  the  decedent  at  probate  sale.  He 
was  prohibited  by  law  from  doing  this,  but  the  sale  to  him  was 
ratified  by  the  heirs.  Held,  this  ratification  by  the  heirs  did  not 
discharge  the  sureties  on  the  administrator's  official  bond  from 
liability  for  money  belonging  to  the  estate  for  which  he  did  not 
account.^  Where  an  administrator  had  wasted  the  estate  of  his 
intestate  and  was  himself  insolvent,  it  was  held  that  if  the  sure- 
ties on  his  official  bond  were  able  to  respond,  all  legal  remedies 
should  be  exhausted  against  them  before  equity  would  subject 
the  estate,  which  had  passed  into  the  hands  of  the  heirs,  to  the 
payment  of  a  debt  of  the  decedent."  It  has  been  held,  that  while 
the   official    bond  of  an    administrator  should  be  made  to  the 

'Reeves  v.   Steele,  2  Head  (Tenn.)  ■*  Watson  f.  Whitten,  3  Richardson, 

647.  Law  (So.  Car.)  224. 

2  Shields  v.  Smith,  8  Bush  (Ky.)  601.  '  Todd  r.  Sparks,  10  La.  An.  668. 

3  Hebert  v.  Hebert,  22  La.  An.  308.  «Pyke  v.  Searcy.  4  Port,  (Ala.)  52. 


G-iO  SUKETIES   ON    OFFICIAL   BONDS. 

state,  it    is   not   void,  if  made   to    tlie  justices  of  tlie   county 
court.' 

§  502.  Miscellaneous  cases  holding  surety  of  executor  or  ad- 
ministrator not  liable. ^ — If  the  effects  of  an  intestate  are  carried 
off  by  a  public  enemy  after  administration  committed,  it  shall 
exonerate  the  sureties  on  the  administrator's  official  bond."^  The 
sureties  on  an  administrator's  official  bond  are  not  liable  to  any 
one  except  the  creditors  and  heirs  of  the  estate.  They  are  not 
therefore  liable  to  a  subsequent  purchaser  of  real  estate  of  the 
decedent,  who  has  been  injured  by  the  act  of  the  administrator  in 
selling  such  real  estate  without  the  formalities  prescribed  by  law.^ 
A  statute  provided  that  if  the  sureties  on  an  administration  bond 
felt  insecure,  they  might  petition  the  court  for  relief,  and  the 
court  should  "  make  such  order  or  decree  as  -  (should)  be  suf- 
ficient to  give  relief  to  the  petitioner."  Held,  the  court  might 
by  its  order  discharge  the  sureties  from  future,  but  not  from  past, 
liabilities.*  If  the  administration  is  taken  away  from  an  admin- 
istrator by  order  of  court,  the  liability  of  the  sureties  on  his 
official  bond  ceases  for  everything  except  his  past  misbehavior.^ 
This  is  true,  even  though  the  removed  administrator  is  after- 
wards appointed  administrator  de  honis  non  of  the  same  estate.® 
An  ordinary  administration  bond,  given  by  an  administrator  de 
honis  non  does  not  bind  the  sureties  therein  for  the  payment  of 
legacies.''  The  same  person  was  appointed  administrator  of  the 
same  estate  in  two  different  states,  and  gave  bond  with  sureties 
in  each:  Held,  the  sureties  in  one  state  were  not  liable  for  prop- 
erty received  by  him  in  the  otlier  state,  even  though  he  removed 
the  property  to  the  former  state  and  there  converted  it,  and  re- 
turned the  2)roceeds  to  the  proper  tribunal  as  assets,* 

^Johnson  v.  Fuquay,  1   Dana  (Ky.)  ^ Polk  r.  Wisener,  2  Humph.  (Tenn.) 

514.     For  a  case  holding  under  pecu-  520. 

liar  circumstances  that  the  surety  of  ^Enicksf.  Powell,  2  Strobh.  (Eq.) 

an  executor  is  not  discharged  by  the  (So.  Car.)  196. 

application  of  the  proceeds  of  his  in-  '  Small  ;;.  Commonwealth,  8  Pa.  St. 

deranity  under  the  order  of  the  county  101 . 

court,  see  Commonwealth  v.   Rogers,  ^Keaton's  Distributees  t?.  Campbell, 

53  Pa.  St.  470.  2  Humph.  (Tenn.)  224.     As  to  what 

^  Ordinary  v.  Corbett,  Bay  (So.  Car.)  need  be  stated  concerning  assets  in  the 

328.  hands  of  an  administratrix  in  a  decla- 

^  Longpre  v.  White,  6  La.  (Curry)  -388.  ration  against  the  surety  on  her  official 

*  Trimmier  v.  Trail,  2  Bailey  Law  bond,  see  People  r.  Dunlap,  13  Johns. 

(So.  Car.)  480.  4-37. 


CHAPTER  XXII. 


OF  STATUTES  RELATING  TO  SURETIES  AND  GUARANTORS. 


Section. 

Who  entitled  to  avail  themselves 
of  statutes  relating  to  securities, 
etc 503 

"What  notice  to  sue  is  sufficient     .  504 

To  whom  the  notice  to  sue  must 
be  given    .... 

Against  whom  suit  should  be 
brought  when  notice  is  given 

As  to  the  diligence  to  be  used  in 
prosecuting  suit  when  notice  is 
given         .... 

Waiver  of  written  notice  to  sue 

How  fact  that  surety  is  indemni- 
fied affects  his  right  to  require 
creditor  to  sue   . 

How  death  of  principal  affects 
right  of  surety  under  statute 

Solvency  of  principal  makes  no 


505 


506 


507 
508 


509 


510 


Section, 
difference  with  reference  to  no- 
tice to   sue.     Statute  must  be 
literally  complied  with      .        .511 

How  discharge  of  one  surety  by 
statutory  notice  to  sue,  affects 
other  sureties     ....  512 

Miscellaneous  cases  as  to  statuto- 
ry notice  by  surety  to  creditor, 
requiring  him  to  sue  .        .  513 

Constitutionality  of  statutes  pro- 
viding summary  remedies  in 
case  of  sureties  .        .        .  514 

Construction  of  statutes  affording 
summary  remedies  in  cases  of 
sureties 515 

Statute  of  limitations,  peculiar 
cases  .        ,        .        .        .516 

Pleading        .....  517 


§  503.  Who  entitled  to  avail  themselves  of  statutes  relating 
to  securities,  etc. — In  various  states  statutes  liave  been  enacted 
affecting  the  rights  and  remedies  of  sureties  in  a  greater  or  less 
degree.  While  the  statute  of  frauds  has  been  generally  enacted, 
lias  but  one  end  in  view  so  far  as  it  relates  to  sureties,  and  is 
very  uniform  in  its  terms,  other  statutes  which  affect  sureties 
have  not  been  so  generally  enacted.  These  latter  statutes  often 
relate  to  different  branches  of  the  subject  of  suretyship,  and  when 
they  relate  to  the  same  thing  their  verbiage  and  effect  are  often 
different.  As  such  statutes  are  to  a  greater  or  less  extent  local, 
no  exhaustive  discussion  of  them  will  be  attempted.  Such  case's 
as  have  been  observed  in  the  preparation  of  this  work,  and  as  are 
not  elsewhere  noted,  will  be  here  referred  to.  It  sometimes  be- 
comes a  question  as  to  who  may  avail  themselves  of  such  enact- 
ments. Where  a  statute  provided  that  "  When  any  person  sliall 
become  bound  as  security  by  bond,  bill  or  note  for  the  pajauent 
41  "^  (641) 


642  STATUTES   RELATING   TO    SURETIES. 

of  money,"  such  person  might  notify  the  creditor  to  proceed 
against  tlie  princijjal,  it  was  held  that  an  indorser  of  a  negotiable 
instrument  M'as  not  such  a  surety  as  was  contemplated  by  the 
statute.'  It  has  been  held  that  an  accommodation  indorser  of  a 
note  cannot  avail  himself  of  a  statute  allowing  "  sureties  "  to  re- 
cover judgment  by  motion  against  a  principal.*  Where  a  statute 
provided  that  "  Wlien  any  person  or  persons  shall  hereafter  be- 
come bound  as  security  or  sureties  upon  any  bond,  bill  or  note," 
such  person  might  notify  the  liolder  to  put  the  same  in  suit,  it 
was  held  that  one  of  the  signers  of  a  joint  and  several  note,  who 
was  in  fact  a  surety,  could  not  avail  himself  of  the  statute  where 
there  was  nothing  on  the  note  to  indicate  the  fact  of  suretyship  ' 
The  same  thing  was  held  wliere  a  statute  j^rovided  "  That  no  per- 
son shall  be  sued  as  indorser  or  guarantor,  or  as  security,  un- 
less suit  shall  have  been,  or  is,  simultaneously  commenced  against 
the  principal."  ^  A  statute  provided  that  all  parties  to  a  "  fraud- 
ulent and  deceitful  conveyance,"  etc.,  should  forfeit  and  pay  a  jjenal- 
alty,  etc.,  which  forfeiture  should  be  equally  divided  between  the 
party  aggrieved,  etc. :  Held,  the  surety  of  a  grantor  in  a  fraudu- 
lent conveyance  was  to  be  regarded  as  the  party  aggrieved  by 
such  conveyance  from  the  date  of  his  suretyship,  and  before  he 
paid  any  portion  of  the  debt,  and  his  right  to  recover  the  penalty 
given  to  the  jjarty  aggrieved  was  perfected  by  paying  the  debt, 
and  dated  from  the  time  of  his  becoming  surety.^ 

§  504.  "What  notice  to  sue  is  sufficient. — A  statute  which 
has  been  very  generally  enacted,  places  it  in  the  power  of  the 
surety,  by  a  notice  in  writing,  to  require  the  creditor  to  put  the 
claim  in  suit.  It  is  well  settled  that  the  notice  in  such  case  must, 
in  order  to  avail  the  surety,  be  a  positive  demand  to  bring  suit. 
Thus,  a  statute  provided  that  a  surety  might  by  notice  in  writing, 
"require  the  creditor  to  bring  suit."  A  surety  wrote  to  the 
creditor:  "  I  am  desirous  that  you  should  bring  suit  on  M's  note, 
on  which  I  am  surety,  and  would  prefer  that  you  enter  suit  in 
this  county  early  in  August,  so  that  the  principal  would  not  have 

'  Bates  V.  Branch  Bank  at  Mobile,  2  ^  p^yng  v.  Webster,  19  111.  103. 

Ala.  689.  To  the  same  effect,  see  Clark  *Ritter  r.  Hamilton,  4  Texas,  325; 

V.  Barrett,  19  Mo.  39;    Ross  v.  Jones,  Ennis  v.  Ci-ump,  6  Texas,  85;  Lewis  v. 

22  Wallace,  576;  Devinney  v.  Lay,  19  Riggs,  9  Texas,  164. 

Mo.  646.  *  Beach  v.  Boynton,  26  Vt.  725. 

*  Harvey  v.  Bacon,  9  Yerg.  (Tenn.) 
808. 


WHAT   NOTICE   TO    SUE    IS   SUFFICIENT.  643 

tlie  same  time  to  dodge:"  Held  the  notice  was  not  sufficient. 
There  was  no  demand  or  requisition,  but  a  mere  expression  of 
the  surety's  desire  that  a  suit  should  be  brought.'  The  mere  re- 
quest by  the  surety,  that  the  creditor  will  put  the  debt  in  a  train 
of  collection,  is  not  sufficient'  A  notice  as  follows:  "Sir,  you 
are  hereby  notified  that  I  will  not  stand  good  as  security  any 
longer  on  the  note  you  hold  against  Wm.  Upton,  and  myself  as 
security,"  is  not  a  sufficiently  explicit  requisition  to  sue.^  A 
statute  provided  that  a  surety  might  "  require  by  notice  in  writing 
of  the  creditor,  forthwith  to  put  the  bond,  etc.  in  suit."  A  surety 
gave  the  creditor  a  notice  as  follows:  "I  wish  you  to  collect  the 
debt  off  of  Poison,  wherein  I  am  security."  Held,  this  was  not 
a  sufficient  requsition  to  sue.*  "Where,  under  a  similar  statute,  a 
surety  sent  a  creditor  by  telegraph  the  following  notice:  "Ex- 
press Rowland  &  Go's,  note  to  Esquire  Bennett  for  collection  to- 
day. Don't  fail."  Held,  the  notice  was  not  sufficient,  as  it  did 
not  require  the  creditor  to  institute  a  suit  at  all,  but  mereh'- 
requested  that  the  note  be  sent  to  Bennett  for  collection.'' 
A  statute  provided  that  a  surety  might  request  the  cred- 
itor to  bring  suit  "on  the  contract,"  or  allow  him  to  do 
so.  A  surety  notified  the  creditor  to  sue  the  principal. 
Held,  this  was  not  sufficient,  as  it  should  have  required 
the  creditor  to  sue  the  contract,  and  the  surety  as  well  as 
the  principal.^  A  notice  by  the  surety  to  the  creditor,  as 
follows  :  "Will  no  longer  stand  security  for  the  principal  debtor, 
unless  suit  is  commenced,  and  prosecuted  according  to  law,"  has 
been  held  sufficient,  although  the  note  is  not  described  nor  re- 
ferred to,  the  creditor  not  showing  that  he  was  actually  misled. 
Technical  accuracy  is  not  required.  It  is  sufficient  if  the  notice 
is  positive,  and  the  creditor  is  not  misled.'  A  statute  provided 
that  a  surety  might,  by  notice,  require  the  creditor  to  sue  or  to 
permit  the  surety  to  commence  suit  in  the  creditor's  name.     A 

'  Savapfe's    Admr.   v.    Carleton,   33  For  other  instances  in  which  the  notice 

Ala.  443;  Bethune  v.  Dozier,  10  Ga.  to  sue  was  held  insutticient,  see  Rice  j^ 

235.     See,  also,  Fensler  v.  Prather,  43  Simpson,  9  Heisk.  (Tenn.)  809;  Baker 

Ind.  119.  V.  KeWogg,  29  Ohio  St.  663. 

*  Bates  V.   State  Bank,  7  Ark.    (2  ®  Harriman  v.  Egbert,  36  Iowa,  270. 

Eng.)394.  On  the   same  subject,    see  Christy's 

^Lockridge  v.  Upton,  24  Mo.  184.  Admr.  v.  Home,  24  Mo.  242. 

*Parrish  I'.  Gray,  1  Humph.  (Tenn.)  '  Routon's  Admr.  v.  Lacy,   17  Mo. 


399. 


•  Kaufman  v.  Wilson,  29  Ind.  504. 


644  STATUTICS   RELATING    TO    SURETIES. 

surety  "wrote  to  tlie  creditor  informiiif^  him  that  "he  wished  him 
to  see  to  collecting  the  note  in  suit,"  us  he  did  not  wish  to  be 
surety  any  longer.  Held,  the  notice  was  insufficient.  The 
court  said:  "  The  surety  must  give  such  notice  as  the  statute  desig- 
nates, before  he  can  claim  to  be  discharged — that  is,  he  must  no- 
tify the  creditor  to  sue,  or  permit  him  to  do  so."  *  A  statute 
provided  that  if  sureties  notified  the  creditor  to  proceed,  to  collect 
his  debt,  and  he  did  not  proceed  for  three  months,  the  sureties 
should  be  discharged.  A  surety  notified  the  creditor  to  proceed, 
but  did  not  state  in  the  notice  that  he  intended  to  avail  himself 
of  the  benefit  of  the  act  if  suit  was  not  brought:  Held,  it  was 
not  necessary  for  the  notice  to  state  that  the  surety  intended  to 
avail  liimself  of  the  benefit  of  the  statute.^ 

§  505.  To  vyhom  the  notice  to  sue  must  be  given. — The  statute 
usually  provides  that  tlie  notice  to  sue  shall  be  given  to  the  cred- 
itor. With  reference  to  this  it  has  been  held  that  the  creditor  to 
whom  the  notice  should  be  given  is  the  party  having  the  legal 
title  and  the  right  to  institute  a  suit.^  It  has  also  been  held  that 
the  proper  person  to  notify  was  the  holder  and  equitable  owner 
of  the  note  on  which  the  surety  was  liable,  although  the  legal 
title  was  in  another.^  Where  a  bank  was  the  creditor,  a  notice  to 
its  cashier  has  been  held  sufficient.*^  Where  there  are  several  ob- 
ligors named  in  the  instrument,  it  has  been  held  that  the  notice 
must  be  served  on  all  of  them.^  Where  a  bank  was  the  creditor, 
it  was  held  that  the  service  of  a  notice  to  sue  on  the  clerk  of  the 
trustees  of  the  bank,  was  not  sufficient.^  It  has  also  been  held 
that  the  service  of  such  a  notice  on  the  attorney  at  law  of  the 
creditor  who  has  the  note,  on  which  the  surety  is  liable,  in  his 
hands  for  collection,  is  not  sufficient.^  It  has  been  held  that  the 
surety,  in  order  to  avail  himself  of  such  a  notice,  must  show  that 

'  Hill  V.  Sherman,  15  Iowa,  365,  per  *  Overturf  v.  Martin,  2  Ind.  (2  Car- 
Baldwin,  C.  J.    See,  also,  on  this  sub-  ter)  507. 
ject,  Shehan  v.  Hampton,  8  Ala.  942.  ^xhe  Bank  v.  Mumford,  6  Ga.  44. 

2  Denson  v.  Miller,  33  Ga.  275.    See,  « Kelly  v.  Matthews,  5  Ark.   (Pike) 

also,  on  this  subject,  Stevens  v.  Camp-  223. 

bell,  6  Iowa  (Clarke)  538.     As  to  when  '  Adams  v.  Roane,  7  Ark.  (2  Eng-.) 

a  surety  may  by  virtue  of  a  special  360. 

statute  have    the    principal,    who    is  *  Cummins  v.   Gai-retson,    15    Ark. 

about  to  leave  the  state,  arrested,    see  132.    To  similar  effect,  see  Driskill  v. 

Ruddell  V.  Childress,  31  Ark.  511.  Board  of  Commissioners,  53  Ind.  532. 

^  Gillilan  v.  Ludington,  6  West  Va. 
128. 


WHO    SHOULD    BE    SUED.  645 

the  notice  was  given  to  the  person  who,  at  the  time,  was  the  legal 
holder  of  the  instrument  on  which  the  surety  was  liable.  The 
burden  of  proof  is  on  the  surety  to  establish  that  fact.^ 

§  506.  Against  whom  suit  should  be  brought  when  notice  is 
given. — It  sometimes  becomes  a  question  as  to  the  persons  against 
whom  suit  should  be  brought  M^hen  a  statutory  notice  to  sue  is 
given.  Where  a  statute  provided  that  a  suret}^  might  notify  the 
creditor  to  sue  all  the  parties  liable  on  any  obligation,  and  if  suit 
was  not  instituted  the  surety  should  be  discharged,  it  was  held 
that  it  was  not  necessary  for  the  creditor,  in  order  to  prevent  the 
discharge  of  the  notifying  surety,  to  sue  such  surety.  It  was  suf- 
ficient if  all  the  other  parties  were  sued,  the  intention  being  to 
prevent  loss  from  negligencej  in  suing  the  principal  and  co-sure- 
ties.^ Where  the  statute  provided  that  the  surety  might  require 
the  creditor  "  forthwith  to  put  the  bond,  bill  or  note  in  suit,"  it 
was  held  that  the  creditor  was  not  obliged  to  sue  the  principal 
first,  but  might  sue  the  surety  and  the  principal  together,  or  the 
surety  alone,  if  the  circumstances  warranted  a  suit  against  him 
alone.  The  surety  might,  by  statute,  if  sued  alone,  bring  the 
principal  in  by  notice,  and  have  judgment  entered  against  him 
at  the  same  time  as  against  the  surety.^  But  where  the  statute 
provided  that  the  surety  might  "give  the  holder  of  the  obliga- 
tion notice  in  writing  forthwith  to  put  the  obligation  in  suit," 
and  the  creditor,  upon  notice  given  him,  sued  the  surety  alone, 
who  gave  the  notice,  and  did  not  sue  the  principal,  it  was  held 
the  surety  was  discharged.  It  did  not  appear  that  the  surety  had 
aright  to  bring  the  principal  in  by  notice,  as  in  the  last  case. 
The  court  said  the  object  of  the  law  was  to  relieve  the  surety,  and 
to  hold  the  surety  bound  under  the  above  circumstances,  would 
be  a  mockery."  A  statute  provided  that  a  creditor  should,  within 
a  stated  time  after  notice  from  a  surety,  sue  the  principal  and 
surety.  Such  a  notice  having  been  given,  the  creditor  sued  the 
surety,  who  lived  in  the  same  county  he  did,  but  failed  to  sue  the 
principal  who  lived  in  another  countj^  Held,  he  was  not  obliged 
to  go  out  of  the  county  to  sue  the  principal,  and  the  surety  was 
not  discharged.^     Under   similar  statutes,  it  has  been  held  that 

'England    v.    McKamey,   4    Sneed  ^  Scott  v.  Bradford,  5  Port.  (Ala.) 

(Tenn.)  75;  Boyd  v.  Titzer,   6  Cold.  443. 

(Tenn.)  568.  *  Starling  v.  Buttles,  2  Ohio,  303. 

2  Perry  v.  Barret,  18  Mo.  140.  *  Hughes  v.  Gordon,  7  Mo.  297. 


Q4:Q  STATUTES   RELATING   TO    SUEETIESi 

the  creditor  is  not  obliged  upon  notice  to  prosecute  tlie  principal 
who  lives  out  of  the  state.' 

8  507.      As    to   the    diligence    to    be    used    in    prosecuting   suit 
when  notice  is  given. — The  statute  usually  prescribes  the  time 
within  which  the  suit  shall  be  brought,  and  when  such  time  is 
definite  the  terms  of  the  law  prevail.     AVhere  the  statute  pro- 
vided that  suit  should  be  instituted  within  a  reasonable  time  after 
notice,  a  delay  of  fourteen  months  in  that  regard  was  held  to 
be  unreasonable.^    So,  where  the  statutory  notice  was  given  July 
27th,  and  the  creditor  commenced  suit    July  30th,  in  a  court 
the  term  of   which  commenced  October  18th,  when  he  might 
have  sued  in  another  court,  the  term  of  which  commenced  August 
Oth,  it  was  held  the  suit  should  have  been  commenced  in  the 
court  where  it  could  be  first  reached,  and  the  surety  was  prima 
facie  discharged.'     Where  the  creditor  brought  suit  against  the 
principal,  pursuant  to  a  notice  from  the  surety,  but  did  not  pro- 
secute it  with  due  diligence,  it  was  held  the  surety  was  discharged. 
The  court  said  that  it  was  just  as  necessary  that  the  suit  should 
be  duly  prosecuted  as  that    it    should   be  instituted."     Where 
a    statute    required    the    creditor  upon  notice  to  use  due  dili- 
gence in  prosecuting  suit  "to  judgment  and  execution,"  and 
judgment  was  obtained,  but  the  clerk  (without  laches  on  the  part 
of  the  creditor)  refused  to  issue  execution  on  the  ground  that  the 
stay  law  forbade  it,  and  the  court  below  sustained  him  in  that  view, 
it  was  held  that  whether  the  decision  of  the  court  was  right  or 
wrong,  no  laches  could  be  imputed  to  the  creditor.^     A  statute  pro- 
vided that  a  surety  might  by  notice  to  the  creditor,  compel  a  suit 
within  three  months,  or  be  discharged  from  the  debt.     A  creditor 
without  any  such  notification  brought  suit  against  a  principal 
and  surety.     The  principal  pleaded  to  the  suit,  but  the  surety 
did  not,  and  the  creditor  without  notice  to  the  surety,  dismissed 
the  suit  as  to  the  principal,  and  took  judgment  against  the  surety. 
Held,  the  surety  was  discharged  by  the   dismissal   of   the   suit 
against  the  principal.    The  court  said  that  if  the  creditor  had  been 
required  to  bring  the  suit  under  the  statute,  and  had  dismissed  it 
and  allowed   three  months  to  pass,  the  surety  would  have  been 

'  Phillips  V.  Riley,  27  Mo.  386;  Rowe  "Craft  v.  Dodd,  15  Ind.  380. 

V.  Buchtel,  13  Ind.  381;   Conklin   r.  "Peters r.  Linenschmidt,  58 Mo. 464. 

Conklin,  54  Ind.  289.  » Harrison's  Exrs.  v.  Price's  Exrs.  25 

"■  Root  r.  Dill,  38  Ind.  169.  Gratt.  (Va.)  553. 


WAIVER   OF   WKITTEN   NOTICE.  647 

discharged.  Here  he  had  voluntarily  done  what  he  could  have 
been  required  to  do,  and  he  must  not  undo  it.  "  The  true  reason 
of  our  holding  is  that  the  creditor  cannot,  by  voluntarily  bring- 
ing suit,  thus  discharge  the  surety  from  the  necessity  of  giving 
the  notice,  put  him  at  ease  and  off  his  guard,  and  then  after  the 
lapse  of  a  considerable  time,  it  may  be  after  protracted  litigation, 
suddenly  of  his  own  motion,  and  without  notice  to  the  surety, 
dismiss  the  action  as  to  the  principal,  and  claim  the  payment  of 
the  debt  from  the  surety.^ 

§  508.  "Waiver  of  the  written  notice  to  sue. — The  giving  of 
the  written  notice  to  sue,  provided  for  by  statute,  and  the  execu- 
tion of  its  requirements  after  it  is  given,  may  be  waived  by  parol. 
Where  a  surety  orally  notified  the  creditor  to  sue  and  the  cred- 
itor promised  to  do  so,  it  was  held  that  this  was  a  waiver  of  the 
writing.  The  court  said  the  statute  "conferred  an  individual 
right  ujDon  the  creditor  for  his  own  benefit,  the  form  of  which  he 
was  entirely  competent  to  waive,  since  it  violated  no  positive 
statute,  nor  rule  of  public  policy."  ^  A  surety  gave  the  creditor 
oral  notice  to  sue,  and  at  the  same  time  ofifered  to  give  him  a 
written  notice.  The  creditor  replied:  "I  do  not  require  a  writ- 
ten notice.  I  waive  a  written  notice.  A  v^erbal  notice  is  all  that 
is  necessary."  Held,  this  was  a  waiver  of  the  writing,  and  if  the 
suit  was  not  brought  within  the  prescribed  period,  the  surety 
was  discharged.^  Where  a  surety  gave  the  creditor  the  written 
statutory  notice  to  sue,  but  at  the  same  time  orally  requested  the 
creditor  to  see  the  principal,  and  try  to  get  the  money  from  him  be- 
fore suing,  and  also  after  the  statutory  period  for  bringing  the  suit 
had  elapsed,  gave  the  creditor  notice  in  writing  not  to  sue,  it  was 
held,  that  these  acts  of  the  surety  were  a  waiver  of  his  notice  to 
sue.*  If,  after  a  surety  gives  the  statutory  notice  to  sue,  he  goes 
to  the  creditor  and  withdraws  the  notice,  and  notifies  him  not  to 
sue  as  required  by  the  notice,  this  is  a  waiver  of  his  rights  under 
the  notice.*  If  a  surety  gives  the  creditor  the  statutory  notice  to 
sue,  and  before  the  expiration  of  the  period  in  which  suit  should 

'  McCarter  v.  Turner,  49  Ga.  309,  that  such  circumstances  as  the  above 

per  Trippe,  J.  did  not  amount  to  a  waiver. 

» Taylor  v.  Davis,  38  Miss.  493,  per  ^  Hamblin    v.  McCallister,   4  Bush 

Handy,    J.;     Smith    v.    Clopton,    48  (Ky.)  418. 

Miss.  66.  In  English  v.  Bourn,  7  Bush  *  Simpson  v.  Blunt,  42  Mo.  542. 

(Ky.)  138,   it  was  admitted  that  the  ^  Gillilan  v.  Ludington,  6  "We.st  Va. 

writing  might  be  waived,   but  held  128. 


648  STATUTES   RELATING   TO    SUKETIES. 

be  broiiglit,  he  asks  the  creditor  to  indulge  the  principal,  this  is 
a  waiver  of  the  notice,  but  it  is  otherwise  if  he  does  not  request 
such  indulgence  until  after  the  expiration  of  the  time  in  which 
suit  should  be  brought.^  If,  after  a  surety  has  notified  the  cred- 
itor to  bring  suit,  he  subsequently  consents  to  the  dismissal  of 
the  suit  brought,  pursuant  to  such  notice,  he  will  remain  bound 
without  any  new  promise.  The  fact  that  the  creditor,  on  the  trial 
of  the  case  against  a  surety,  does  not  object  to  oral  evidence  of  a 
notice  to  sue,  does  not  amount  to  a  waiver  of  his  right  to  insist 
that  such  notice  mnst  be  in  writing  in  order  to  bind  him." 

§  509.  Hovr  fact  that  surety  is  indemnified  affects  his  right 
to  require  creditor  to  sue. — -Where  the  principal,  in  order  to  in- 
demnify his  sureties,  mortgages  to  them  property  sufficient  for 
that  purpose,  it  has  been  held  that  such  sureties  cannot  avail 
themselves  of  the  statute  authorizing  sureties  to  require  the  cred- 
itor to  bring  suit.  The  court  said  the  surety  is  "  allowed  to  in- 
terpose and  hasten  the  collection  of  the  debt  only  upon  the  ground 
that  delay  is  hazardous  to  his  rights.  Although  bound  for  its 
payment,  it  is  not  j)roperly  his  debt,  and  where  the  principal 
debtor  places  money  or  conveys  property  of  ample  value  to  satisfy 
and  pay  the  debt,  there  remains  no  equitable  ground  upon  which 
a  claim  to  hasten  the  collection  rests."  ^  Evidence  that  a  surety 
was  indemnified  by  his  principal,  has  been  held  competent  on  the 
issue  whether  or  not  the  surety  had  required  the  creditor  to  pro- 
ceed against  the  princijjal,  as  allowed  by  statute.* 

§  510.  How  death  of  principal  affects  right  of  surety  under 
statute. — A  statute  provided  that  "  no  person  shall  be  sued  as 
indorser  or  security  unless  suit  has  been  first  or  simultaneously 
commenced  against  the  principal,  provided  the  principal  is  with- 
in the  jurisdiction  of  the  courts  of  the  Republic."  The  principal 
was  dead,  and  suit  was  commenced  against  the  surety  without 
any  suit  being  first  commenced  against  the  principal  or  his  es- 
tate: Held,  the  surety  was  properly  sued.  Tlie  principal  was  not 
within  the  jurisdiction  of  the  courts  of  the  Republic.^  Another 
statute  provided  that  a  surety  might,  b}^  writing,  require  "the 
person  havine;  such  right  of  action  forthwith  to  commence  suit 

'  Bailey  v.  Kew,  29  Ga.  214.  ^  Scott  v.  Dewees,  2  Texis,  153;  En- 

**  Davis  V.  Payne,  45  Iowa,  194.  nis  Crump  v.,  6  Texas,  85.     To  simi- 

» Wilson  V.  Tebbetts,  29  Ark.  579,  kr  eftect,  see  Boggs  v.  The  State,  46 

per  Walker,  J.  Texas,  10. 
4  Bailey  v.  New,  29  Ga.  214. 


DISCHAKGE    OF    ONE   SURETY   BY   STATUTORY   KOTICE.  6^9 

against  the  principal  debtor  and  other  parties  liable":  Held,  a 
surety  could  not,  after  the  death  of  the  principal,  exonerate  him- 
self by  notifying  the  creditor  to  present  his  claim  against  the 
estate  of  the  principal.  The  case  was  not  within  the  meaning 
of  the  statute.^ 

§  511.  Solvency  of  principal  makes  no  difference  -with  refer- 
ence to  notice  to  sue — Statute  must  be  literally  complied  -with. 
— Where  the  creditor  fails  to  sue  in  pursuance  of  the  statutory 
notice,  it  has  been  held  that  the  fact  that  the  principal  was  and  re- 
mained solvent  would  not  prevent  the  discharge  of  the  surety.  The 
court  said:  "  The  statute  is  imperative.  It  leaves  no  discretion 
with  the  creditor.  Whether  the  principal  debtor  be  insolvent  oi- 
not,  it  is  the  privilege  of  the  surety  to  require  suit  to  be  brought 
and  diligently  prosecuted  to  final  judgment,  that  the  ability  of 
the  principal  to  pay  may  be  tested." "  A  statute  provided  that  a 
surety  might  notify  the  creditor  in  writing  to  proceed,  and  if  he 
did  not  the  surety  should  be  discharged,  provided  he  proved  by 
two  witnesses,  in  open  court,  the  delivery  of  the  notice.  Held, 
that  proof  by  one  witness  that  the  creditor  admitted  he  had  been 
notified  was  not  sufficient.  The  statute  must  be  literally  obeyed 
to  entitle  the  surety  to  its  benefit.^ 

§  512.  How  discbarge  of  one  surety  by  statutory  notice  to  sue 
affects  other  sureties. — Where  a  portion  of  several  sureties  are 
discharged  by  the  failure  of  the  creditor  to  sue,  in  pursuance  of 
the  statutory  notice  given  him  by  them,  it  has  been  held  that  all 
the  sureties  are  thereby  wholly  discharged.*  It  has  also  been  held 
in  such  case,  that  the  surety  who  gave  no  notice  was  only  exoner- 
ated to  the  extent  that  the  surety  who  was  discharged  would  have 
been  liable  to  contribute.^  But  where  the  statute  provided  that 
"  the  surety  who  shall  have  given  such  notice  shall  be  discharged 
from  liability,"  it  was  held  that  his  discharge  did  not  aft'ect  the 
liability  of  the  surety  who  gave  no  notice.^  Where  a  statute  pro- 
vided that  "  where  any  person  or  persons  "  were  sureties,  and  a])- 

'  Hickman  v.  Hollingsworth,  17  Mo.  Wrig-ht's  Admr.  v.  Stockton,  5  Leigh 

475.  (Va.)  153. 

2Reid  V.  Cox,  5  Blackf.  (Ind.)  312,  ^Routon's  Admr.  v.  Lacy,   17  Mo. 

per  Sullivan,  J.;  Overturf  v.  Martin,  399. 

2  Ind.  (2  Carter)  507.  SRamey  v.  Purvis,  38  Miss.  499.  To 

3  Miller    t'.    Childress,    2     Humph,  similar  effect,  see  Wilson  v.  Tebbetts, 
(Tenn.)320.                                                '  29  Ark.  579. 

*  Jones  V.  Whitehead,  4  Ga.  397; 


650  STATUTES   RELATING    TO    SURETIES. 

prehended  the  insolvency  of  the  princi})al,  it  should  be  lawful 
"for  such  security  or  securities  to  give  notice,"  etc.,  it  was  held 
that  all  the  sureties,  or  any  less  niunber,  might  avail  themselves 
of  the  statute.'  If  one  surety  is  discharged  hf  reason  of  having 
given  the  creditor  the  statutory  notice  to  sue,  and  another  surety 
afterwards  pays  the  debt,  he  cannot  recover  contribution  from  the 
surety  who  is  discharged  as  aforesaid.^ 

§  513.  Miscellaneous  cases  as  to  statutory  notice  by  surety 
to  creditor  requiring  him  to  sue. — Where  a  surety,  in  the  manner 
prescribed  by  statute,  notified  the  creditor  to  sue  the  principal,  it 
was  held  that  the  disturbed  condition  of  the  country  was  no 
excuse  for  not  commencing  the  suit  within  the  statutory  period.' 
A  stockholder  of  a  bank,  who  is  a  surety,  may  give  the  bank, 
which  is  the  creditor,  the  statutory  notice  to  sue.*  It  has  been 
held  that  the  surety  on  a  bond  given  to  a  county  for  the  use  and 
benefit  of  the  fund  arising  from  the  sale  of  swamp  lands  in  the 
county,  cannot  exonerate  himself  from  liability  by  notifying  the 
county  to  sue  on  the  bond.^  A  statute  provided,  that  where  a 
surety  apprehended  his  principal,  was  about  to  become  insolvent, 
he  might  notify  the  creditor  to  sue.  Held,  his  apprehension  of 
the  fact  could  not  be  put  in  issue.^  It  has  been  held,  that  the 
creditor  who  is  notified  to  sue,  is  only  bound  to  prosecute  his 
claim  to  judgment  and  execution  at  law,  and  is  not  bound  to  ex- 
haust all  equitable  remedies  against  the  principal.^  "Where  a 
creditor  is  obliged  by  statute  to  levy  on  the  property  of  the 
principal  first,  and  does  so,  and  the  principal  gives  a  forthcoming 
bond  for  the  property,  but  does  not  afterwards  surrender  such 
property,  it  has  been  held  that  the  creditor  is  not  obliged  to  sue 
the  forthcoming  bond  before  coming  on  the  surety.*  A  statute 
provided  that  a  surety  might,  by  notice,  require  the  creditor  to 
sue  or  allow  him  to  do  so,  and  if  the  creditor  failed  to  do  either 
for  ten  days,  the  surety  should  be  discharged.  Such  a  notice 
having  been  given,  and  nothing  having  been  done  for  ten  days, 

'  Wright's    Admr.    v.    Stockton,   5  *  Jaspor  County  v.  Shanks,  61  Mo. 

Leigh  (Va.)  153.  332. 

^  Letcher's  Admr.  v.  Yantis,  3  Dana  ®  First  National  Bank  v.  Smith,  25 

(Ky.)  160.     See,  also,  on  this  subject,  Iowa,  210. 

Perry  v.  Barret,  18  Mo.  140.  '  Hamson's  Exrs.  v.  Price's  Exrs.  25 

»Cockrill  V.  Dye,  33  Mo.  365.  Gratt.  (Va.)  553. 

*  First  National  Bank  v.  Smith,  25  *  Brown  v.  Brown,  17  Ind.  475. 
Iowa,  210. 


CONSTITUTIONAXITT   OF    STATUTES.  651 

it  was  held  the  surety  was  discharged.  It  was  the  creditor's 
duty  to  act  himself,  or  notify  the  surety  that  he  could  act,  within 
the  ten  days.^  It  has  been  held,  that  after  a  judgment  against 
sureties,  they  cannot  require  the  creditor  to  sue  the  principal, 
who  has  not  yet  been  sued." 

§  514.  Constitutionality  of  statutes  providing  summary  reme- 
dies in  case  of  sureties. — -The  constitutionality  of  statutes  which 
provide  summary  remedies  against  and  on  behalf  of  sureties,  has 
been  questioned,  but  they  have  generally  been  held  to  be  consti- 
tutional. Thus,  statutes  which  provide  that  when  a  judgment 
which  has  been  appealed  from  is  affirmed,  judgment  shall  at  the 
same  time  be  entered  against  the  surety  in  the  appeal  bond;" 
which  authorize  the  issuing  of  a  fee  bill  against  a  person  who  be- 
comes security  for  costs  in  a  cause  ;^  and  which  authorize  the  issu- 
ing of  an  execution  against  the  surety  of  a  garnishee  at  the  same 
time  it  is  issued  on  a  judgment  against  the  garnishee,^  have  all 
been  held  to  be  constitutional.  The  surety  is  in  such  case  no 
more  deprived  of  the  right  of  trial  by  jury,  than  if  he  had  signed 
a  power  of  attorney  to  confess  judgment.  He  knows  the  law 
when  he  signs  the  obligation,  and  must  be  presumed  to  consent 
to  whatever  lawfully  follows.  The  terms  of  the  law  are  as  much 
a  part  of  his  obligation  as  if  they  had  been  written  in  it.  A 
statute  authorizing  summary  process  against  delinquent  tax  col- 
lectors and  their  sureties,  is  not  an  infringement  of  the  fourth 
and  fifth  amendments  of  the  constitution  of  the  United  States, 
nor  is  it  a  violation  of  the  state  constitution  prohibiting  unrea- 
sonable searches  and  seizures  of  property  without  due  process  of 
law.®  A  statute  providing  that  a  surety  who  has  paid  the  debt 
may  by  motion  recover  a  judgment  for  indeiilnity  against  his 
principal,  is  constitutional.'^ 

§  515.  Construction  of  statutes  affording  summary  remedies 
in  cases  of  sureties. — It  is  well  settled  that  statutes  authorizing 
summary  remedies  by  or  against  sureties,  must  be  strictly  con- 
strued, and  will  not  be  extended  by  implication.'  A  statute  au- 
thorizing a  summary  judgment  against  one  becoming  security  for 

1  First  National  Bank  v.  Smith,  25  ''Loh  y.  Judge  of  Wayne  Circuit,  26 

Iowa,  210.  Mich.  186. 

^  Irwin  V.  Helgenberg-,  21  Ind.  106.  «  Weiner  v.  Bunbury,  30  Mich.  201. 

2 Davidson  v.  Farrell,  8  Minn.  258;  '  McCord  v.  Johnson,  4  Bibb  (Ky.) 

Chappee  i\  Thomas,  5  Mich.  53.  531. 

*  Whitehurst  v.  Coleen,  53  111.  247.  «Garratt  v.  Eliff,  4  Humph.  (Tenn.) 


652  STATUTES   RELATING   TO    SURETIES. 

costs,  does  not  antlioriz:e  such  a  judgment  on  an  appeal  bond  pro- 
viding for  the  paj'nient  of  the  judgment  and  costs. ^  A  statute 
provided  tliat  in  certain  cases  judgment  might  be  rendered  on 
motion  against  j^rincipal  and  sureties.  In  a  case  otlierwise  with- 
in the  statute,  tlie  principal  was  dead:  Held,  no  such  judgment 
could  be  rendered  against  the  sureties  alone.^  It  has  also  been 
held  that  such  a  judgment  cannot  be  rendered  against  a  princi- 
2)al  and  part  of  his  sureties,  unless  the  omitted  surety  is  dead 
and  has  no  administrator.  Jud^^ment  must  be  rendered  aofainst 
all  who  are  living,  or  none.'  Upon  a  motion  against  a  constable 
and  his  sureties  on  account  of  a  failure  to  pay  over  money  col- 
lected by  him,  it  was  held  that  a  notice  to  the  constable  of  the 
intended  motion,  was  sufficient  to  authorize  a  iudffment  ao'ainst 
him  and  his  sureties.^  A  statute  provided  that  sureties  might, 
by  motion,  recover  judgment  against  their  principal  as  soon  as 
judgment  was  recovered  against  them.  Under  this  statute  it 
was  held  that  sureties  might  recover  a  joint  judgment  against 
their  principal  before  they  paid  the  judgment  against  them,  but 
not  afterwards.^  It  was  also  held  in  the  same  case  that  after  the 
sureties  had  been  sued  alone  they  might  confess  judgment,  and 
immediately  recover  judgment  against  the  principal  by  motion. 
Under  a  similar  statute  it  has  been  held  that  one  of  several  sure- 
ties, against  whom  judgment  has  been  rendered,  cannot  recover 
judgment  by  motion  against  the  princij)al.  Such  a  judgment 
must  be  in  favor  of  all,  or  none.^ 

§  516.  Statute  of  limitations — Peculiar  cases. — Where  a  stat- 
ute provided  that  the  sureties  of  a  postmaster  should  be  dis- 
charged unless  suit  was  brouglit  within  two  years  after  his  de- 
fault, it  was  held  that  suit  must  be  brought  within  two  years  after 
his  first  default,  in  order  to  charge  the  sureties  for  anything.^ 
Where  the  limitation  as  to  suits  against  sureties  was  seven  years, 
it  was  held,  that  a  signer  of  the  note,  who  was  in  fact  a  surety, 

323;     Frost    v.    Rucker,   4    Humph.  *  Baxters.  Marsh,  1  Yerg.    (Tenn.) 

(Teim.)  57;  Dibrell  v.  Dandridge,  51  460. 

Miss.  55.  'Newman  v.   Campbell,  Martin  & 

'  Willard  V.  Fralick,  31  Midi.  431.  Yerg.  (Tenn.)  63. 

'Houston  V.  Dougherty,  4  Humph.  ^Litler  v.  Horsey,  2  Ohio,  209.      As 

(Tenn . )  505.  to  what  such  a  judgment  in  favor  of  the 

^Gibson     V.     Martin,     7    Humph.  surety  must  show,  see  Jones  ?;.  Read, 

(Tenn.)     127;    Rice    v.    Kirkman,   3  1  Humph.  (Tenn.)  335. 

Humph.  (Tenn.)  415.  See,  also,  on  this  '  United  States  v.  Marks's  Sureties, 

subject,  Price  v.  Cloud,  6  Ala.  248.  3  AVallace,  Jr.  358. 


PLEADING.  653 

might  avail  himself  of  the  statute,  although  the  assignee  did  not 
know  of  the  suretyship,  and  it  did  not  appear  from  the  note.'  It 
has  been  held  that  the  statute  of  limitations  as  to  sureties,  did 
not  apply  to  a  mortgage  given  by  one  person  for  the  debt  of  an- 
other, but  only  applied  to  the  personal  liability  of  the  surety," 

§  517.  Pleading. — A  statute  provided  that  where  judgment 
was  rendered  upon  any  instrument  of  writing  in  which  two  or 
more  persons  were  jointly  or  severally  bound,  and  it  appeared  b}'- 
parol,  or  otherwise,  that  one  was  only  a  surety,  judgment  should 
be  rendered  against  him  as  such,  and  his  property  should  not  be 
taken  till  the  principal's  was  exhausted.  Held,  that  no  pleadings 
nor  formalities  were  required  to  bring  the  question  of  suretyship 
before  the  court.^  It  has  been  held  that  the  discharge  of  the 
surety  by  statutory  notice  must  be  specially  pleaded.*  So  it  has 
been  held  that  a  plea  that  the  statutory  notice  was  given,  should 
allesre  that  it  was  in  writinij:.^  And  it  has  also  been  held  that  such 
a  plea  need  not  allege  that  the  notice  was  in  writing.^ 

1  Day  V.  Billingsby,  3  Bush  (Ky.)  157.  *  Shehan  v.  Hampton,  8  Ala.  942. 

'  Hobson  V.  Hobson's  Exr.  8   Bush         » Headington  v.  Neff,  7  Ohio,  229. 
(Ky.)  665.  «  Coats  v.  Swindle,  55  Mo.  31. 

^Kupferp.  Spinhorst,  1  Kansas,  75; 
Rose  V.  Madden,  1  Kansas,  445. 


CHAPTER  XXIII. 


OF    EVIDENCE. 


Section. 

When  declarations  or  admissions 
of  principal  not  evidence 
against  surety        .        .        .      518 

Declarations  of  principal,  evidence 
against  surety  in  joint  suit 
against  them        .        .        .        519 

Instances  of  admissibility  of  dec- 
larations of  principal  as  evi- 
dence against  surety        .        .     520 

When  admissions  of  principal  are 
part  of  the  res  gestae,  they  are 
evidence  against  surety        .        521 

How  far  entries  or  returns  made 
by  pubUc  officer  are  evidence 
against  his  surety        .        .        522 

When  entries  made  by  deceased 
principal  evidence  against  sure- 
ty, etc 523 

When  and  how  far  judgment 
against  principal  evidence 
against  surety        .        .        .      524 

Cases  holding  judgment  against 
principal  prima  facie  evidence 
against  surety,  etc.        .        .      525 

Cases  holding  judgment  against 
principal  conclusive  against 
surety.  Impeaching  judgment 
for  fraud,  etc.        .        .        .       526 


Section. 

How  far  judgment  against  surety 
evidence  against  principal        .  527 

Judgment  rendered  against  princi- 
pal in  favor  oisurety  without  no- 
tice, no  evidence  in  another  state  528 

When  judgment  against  one 
surety  evidence  against  a  co- 
surety         529 

How  far  judgment  against  sheriff 
evidence  against  sureties  on  his 
official  bond         .         .        .        530 

When  judgment  against  princi- 
pal on  bond  to  sheriff  evidence 
against  surety  therein,  etc.        .  531 

When  judgment  against  admin- 
istrator conclusive  evidence 
against  his  surety        .        .        532 

How  far  judgment  against  guar- 
chan  evidence  against  his  surety  53^3 

When  decree  against  principal 
conclusive  against  surety  on  in- 
junction bond        .        .        .       534 

What  presumptions  arise  from 
non-payment  by  principal        .     535 

When  surety  estopped  by  recitals 
of  his  obligation        .        ,        .  536 

Miscellaneous  cases  as  to  evidence 
in  suits  against  sureties        .       537 


§  518.  "When  declarations  or  admissions  of  principal  not  evi- 
dence against  surety. — Questions  as  to  the  admissibility  and  ef- 
fect of  evidence,  which  are  peculiar  to  the  relation  of  principal 
and  surety,  frequently  arise,  and  may  properly  find  a  place  here. 
As  a  general  rule,  where  the  suit  is  against  a  surety  alqne,  admis- 
sions or  declarations  of  the  principal,  which  are  not  a  part  of  the 
res  gestce,  and  which  are  made  either  before  the  surety  became 
bound,*  or  after  the  employment  for  which  the  surety  became 

'  Cheltenham  Fire  Brick  Co.  v.  Cook,  44  Mo.  29. 
(654) 


DECLARATIONS  OF  PKINCIPAL  AS  EVIDENCE  AGAINST  SURETY.     655 

bound  lias  ceased,^  or  after  there  lias  been  a  breach  of  the  con- 
tract on  which  the  surety  is  liable,^  are  not  admissible  in  evi- 
dence. But  it  ]ias  been  held  that  the  acts,  admissions  and  decla- 
rations of  the  principal  obligor  in  a  bond,  done  and  made  at  the 
time  of  its  delivery,  are  evidence  against  his  sureties  therein, 
though  he  be  dead,  and  therefore  not  a  party  to  the  suit.^  A  en- 
tered into  a  partnership  with  B  for  a  stipulated  time,  and  C  be- 
came surety  to  B  for  A's  conduct  as  partner  for  such  time.  In 
a  suit  by  B  against  C  on  the  obligation  for  the  default  of  A,  it 
was  held  that  the  admissions  of  A,  after  the  expiration  of  the 
time  for  which  the  partnership  was  made,  were  not  admissible  in 
evidence  against  C.  The  court  said:  "The  defendants  were 
bound  for  the  conduct  of  ^  (A)  during  the  term  for  which  they 
had  covenanted,  but  not  for  what  he  might,  after  tlie  la23se  of  sev- 
eral years,  be  induced  to  say  in  relation  to  his  conduct  during 
the  stipulated  term.  It  is  true,  that  while  the  principal  is  acting, 
his  declarations  may  be  so  interwoven  with  his  acts  as  to  stand 
in  direct  connection  with  them,  and  form  part  of  the  res  gestcB, 
but  when  he  ceases  to  act,  his  subsequent  declarations  have  no 
direct  connection  with  his  preceding  acts,  so  as  to  bind  his  sure- 
ties." * 

§  519.  Declarations  of  principal,  evidence  against  surety  in 
joint  suit  against  them. — When  the  suit  is  against  the  principal 
and  surety  jointly  on  a  joint  or  joint  and  several  obligation,  an 
admission  or  declaration  of  the  principal,  which  is  competent  ev- 
idence against  him,  is  also  generally  held  to  be  competent  against 
the  surety.^  Such  evidence  is,  of  course,  admissible  against  the 
principal,  and  in  a  joint  suit  on  a  contract,  the  recovery  must 
usually  be  against  all  or  none,  and  the  measure  of  damages  as  to 

'Tenth  National  Bank  r.  Darragh,  Bank  of  Memphis,    9   Heisk.  (Tenn.) 

IHun   (N.  y.)lll;    Ashurst  r.  Ash-  475;  Wheeler  v.  The  State,  9  Heisk. 

urst,  13  Ala.  781;  Chelmsford  Compa-  (Tenn.)  393. 

nj  V.  Demarest,  7  Gray,  1;    Common-  ^Walker  r.  Pierce,   21   Gratt.  (Va.) 

wealth  V.  Brassfield,  7  B.  Mon.  (Ky.)  722. 

447;    Sbelbv  v.   Governor,   2  Blackf.  *  jjot^hkiss  r.  Lyon,  2  Blackf.  (Ind.) 

(Ind.)  289;  Pollard  r.  Louis\-ille,  C.  &  222,  per  Holman,  J. 

L.  R.  R.  Co.  7  Bush  (Ky.)  597.  Contra,  ^ ]\IcNeale  r.  Governor,  3  Gratt. (Va.) 

Treasurers  v.  Bates,  2  Bailey  Law  (So.  299;  Atlas  Bank  r.  Brownell,  9  Rhode 

Car.)  362.  Is.  168;  Amherst  Bank  r.  Root,  2  Met. 

*Cassitys  v.   Robinson,  8  B.  Mon.  (Mass.)  522;  see,  also,  Darter  v.  The 

(Ky.)279;  Hatch  v.   Elkins,  65  New  State,   5  Blackf.    (Ind.)  61;   Davis  v. 

York,  489;  White  v.  The  German  Natl.  Kingsley,  13  Ct.  285. 


656  EvroENCE. 

all  is  tlie  same.  A  statute  provided  that  a  receipt  given  b^^  a 
constable  in  his  official  capacity,  should  be  evidence  against  him 
in  a  suit  to  recover  the  money  for  which  the  receipt  was  given. 
In  a  joint  suit  against  a  constable  and  his  sureties,  it  was  held 
that  the  receipt  was  jprm^  facie  evidence  against  all  of  thera. 
The  court  said  that  whatever  would  establish  the  liability  against 
the  constable,  would  establish  it  against  his  sureties.  "  As  the  con- 
stable and  his  sureties  may  be  joined  in  the  suit,  it  could  not 
have  been  the  intention  of  the  legislature  that  proof  which,  un- 
contradicted, would  be  conclusive  against  the  constable  to  estab- 
lish the  receipt  of  the  money,  should  not  be  evidence  against  the 
sureties,  whose  liability  is  a  mere  consequence  of  the  establish- 
ment of  that  fact  as  against  the  principal."  ^  A  principal  in  a 
joint  and  several  note  under  seal,  signed  by  himself  and  two  sure- 
ties, but  all  appearing  as  principals  on  the  note,  informed  a  party 
who  was  about  to  purchase  it,  that  the  note  was  all  right  and 
would  be  paid.  All  the  makers  of  the  note  were  sued  jointly 
thereon,  and  joined  in  their  defense.  Held,  the  above  declara- 
tions of  the  principal  were  evidence  against  all  the  parties  to  the 
note,  and  precluded  the  setting  up  as  a  defense  by  any  of  them 
that  there  was  fraud  in  obtaining  the  note.^  But  in  a  suit  on  a 
promissory  note  made  by  B  and  C,  where  B  made  no  de 
fense,  and  C  appeared  and  made  a  separate  defense  as  surety  of 
B,  a  letter  written  by  B,  containing  declarations  of  his  about  the 
matter,  was  held  not  admissible  as  evidence  against  C.^ 

§  520.  Instances  of  admissibility  of  declarations  of  principal 
as  evidence  against  surety. — Where  the  effect  of  the  contract  is 
that  the  surety  shall  be  responsible  for  the  declarations  and  ad- 
missions of  the  principal,  or  such  declarations  and  admissions  are 
to  furnish  the  basis  upon  which  others  are  to  act,  such  declara- 
tions and  admissions  are  in  these  cases  generally  held  to  be  compe- 
tent evidence  against  the  surety.  Thus,  a  guarantor  agreed  to 
hold  himself  responsible  "  for  the  conduct  of  my  son."  The  son 
confessed  a  judgment  for  the  amount  due  by  him  to  the  creditor. 
Held,  in  a  suit  against  the  guarantor,  that  this  judgment  was  ad- 
missible, to  show  the  amount  of  indebtedness  of  the  son.  The 
court  said  that  the  guarantor  being  only  collaterally  liable,  proof 

'  Smith  V.  The  Governor,   2  Robin-  ^  Montgomery      v.     Dillingham,     0 

son  (Va.)  229,  per  Allen,  J.  Smedes  &  Mar.  (Miss.)  647. 

2  Pierce  v.  Goldsberry,  35  Ind.  317. 


DECLARATIONS  OF  PRINCIPAL,  EVIDENCE  AGAINST  SURETY.      657 

of  the  principal's  liability  was  indispensable  to  a  recovery.  "But 
this  liability  might  have  been  proved  by  a  confession  in  writing, 
or  even  by  parol  after  his  death,  if  not  before;  then  why  not  by 
the  more  solemn  act  of  confessing  it  of  record?"'  A  guaranty 
was  as  follows:  "Wilson  having  proposed  to  go  to  Philadelphia 
in  order  to  purchase  goods,  I  wish  you  to  give  him  any  assistance 
in  your  power  by  letter  or  otherwise.  You  may  consider  me  ac- 
countable with  him  to  you  for  any  contract  he  may  make."  Wil- 
son made  a  verbal  contract  with  the  creditor,  which  he  afterwards 
acknowledged  and  recited  in  a  letter.  Held,  this  letter  was  evi- 
dence of  the  contract  in  a  suit  as^ainst  the  o-uarantor.  The  court 
said  that  the  guarantor  "  having  confided  to  Wilson  the  making 
of  the  contract,  confided  to  him  in  consequence  the  power  of  fur- 
nishing evidence  of  the  contract.  The  contract  having  been  made 
by  parol,  without  witness,  it  was  impossible  to  prove  it  in  any 
other  manner  than  by  the  subsequent  declarations  of  the  party."  ^ 
A  agreed  in  writing  to  dig  such  quantity  of  iron  ore  not  exceeding 
six  hundred  tons,  as  B  might  be  able  to  sell  before  a  certain  date,  and 
if  B  was  not  able  to  sell  it,  he  was  not  to  be  under  any  obligation  to 
take  it.  B  notified  A  that  he  had  sold  six  hundred  tons  of  ore, 
and  he  wished  him  to  dig  it,  and  A  accordingly  did  so.  In  a 
suit  brought  on  a  guaranty  of  the  contract  made  at  the  same  time 
the  contract  was  made,  it  was  held  that  B's  declaration  that  he  had 
sold  six  hundred  tons  of  the  ore,  was  conclusive  evidence  of  that 
fact  against  the  guarantor.  The  court  said  that  all  parties  agreed 
to  look  to  B  to  sell  the  ore,  and  when  B  told  A  that  he  had  sold 
the  ore,  A  had  no  right  to  demand  further  evidence  of  the  fact. 
A  having  acted  on  the  information  which  B  had  given  him,  B 
was  concluded  by  it,  and  so  were  the  guarantors,  although  B 
was  not  a  party  to  the  suit.^  By  the  terms  of  an  agreement,  A 
purchased  of  B  certain  lumber,  which  B  was  to  deliver  and  A 
was  to  examine.  In  a  suit  against  a  surety  to  the  agreement,  a 
written  acknowledgment  of  A  that  the  lumber  had  been  receiv- 
ed, was  held  admissible  against  the  surety.  The  court  said  : 
"  By  the  agreement     *     (A)  was  to  examine  the  lumber,  and  we 

'  Drummondt'.  Prestman,  12  Wheat-  Adrar.  of  Wilson  v.   Green,    2o  Vt. 

on,  515.     Holding'   the   admission   of  450. 

the  principal  with  reference  to  the  pay-  "^  Meade  r.  McDowell,  5  Binney  (Pa.) 

mentof  a  lost  or  destroyed  note,  compe-  195,  per  Tilghman,  C.  J. 

tent  evidence    against  a  surety,   see  ^  Bushnell  v.  Church,  15  Ct.  406. 

42 


658  EVIDENCE. 

presume  was  to  decide  whether  it  was  such  as  the  plaintiff  en- 
gaged to  deliver.  And  if  he  were  a  witness,  he  would  not  be 
permitted  to  contradict  his  written  acknowledgment."  ^  A  wrote 
a  letter  to  B,  informing  him  that  C  was  about  to  embark  in  busi- 
ness, and  stating,  "  should  they  make  a  bill  with  you,  I  will  be 
responsible  for  the  amount."  In  a  suit  against  A  on  the  guar- 
anty, it  was  held  that  evidence  that  C  acknowledged  the  receipt 
of  the  goods,  was  not  admissible.  The  court  said:  "The  en- 
gagement on  the  part  of  the  defendant  was  to  be  responsible  for 
such  bill  as  *  (C)  should  make,  and  not  such  bill  as  they 
should  acknowledge  they  had  made.  The  defendant  had  a  right 
to  liave  the  delivery  proved  in  the  accustomed  mode,  and  not  by 
hearsay  evidence."  ^  In  a  suit  on  two  bonds  of  an  administrator, 
the  second  having  been  given  upon  the  application  of  the  sure- 
ties on  the  first  to  be  discharged,  it  was  held  that  the  sureties 
in  the  second  bond  could  not  give  in  evidence  the  declarations 
of  the  administrator  made  at  the  time  of  executing  the  second 
bond,  in  order  to  show  when  the  defalcation  occurred.^ 

§  521.  "Where  declarations  of  principal  are  part  of  res  gestae, 
they  are  evidence  against  surety. — When  the  declarations  or 
admissions  of  the  principal  are  made  in  the  course  of  the  per- 
formance of  the  business  for  which  the  surety  is  bound,  so  as  to 
become  a  part  of  the  res  gestae,  they  are  evidence  against  the 
surety.*  AYhere  it  was  the  custom  of  a  bank  cashier  to  periodi- 
cally present  statements  of  the  condition  of  the  bank's  accounts, 
and  on  one  of  such  occasions,  while  such  account  was  being  ex- 
amined, the  cashier  admitted  embezzlements,  it  was  held  that 
such  admissions  were  evidence  against  his  surety.  "  The  state- 
ments were  made  in  the  course  of  the  duty  for  the  faithful  per- 
formance of  which  by  the  cashier  *  (the  surety)  had  bound 
himself.  They  were  made  while  the  cashier  was  still  in  office; 
they  accompanied  and  explained  an  official  act,  and  must  be  re- 
garded as  part  of  the  res  gestae.''^ "     The  cashier  of  a  bank  being 

'Reynes    v.   Zacharie's  Succession,  *  Blair  v.  Perpetual  Ins.  Co.  10  Mo. 

10  La.  (Curry)  127,  per  Bullard,  J.  559;  Snell  v.   Allen,  1  Swan  (Tenn.) 

2  Griffith  V.  Turner,  4  GHl  (Md.)  Ill,  208;  Casky  v.  Haviland,  13  Ala.  314; 

per  Archer,  C.  J.  United  States  v.  Cutter,  2  Curtis.  617. 

^  Lane  v.  The  State,  27  Ind.   1Q8.  See.  also,  on    this   subject,  Wyche  v. 

For  a  case  holding  the  admissions  of  Myrick,  14  Ga.  584. 

the  principal  inadmissible  against  the  *  Bank  of  Brighton  v.  Smith,  12  Al- 

surety,  see,  also,  Kirkpatrick  v.  Howk,  len,  243,  per  Colt,  J. 
80  HI.  122. 


DECLARATIONS    OF   PRINCIPAL    PART    OF    RES    GESTAE.  659 

tliouglit  guilty  of  breaches  of  duty,  a  list  of  supposed  charges 
against  him  for  funds  not  accounted  for,  and  misapplied  by  him, 
was  presented  to  him,  and  he,  while  still  in  office,  wrote  opposite 
each  charge  admissions  and  explanations,  and  signed  his  name 
thereto.  Held,  these  admissions  were  evidence  against  him  and 
his  sureties,  of  the  facts  there  stated.'  "Where  a  clerk  during  the 
term  of  his  employment,  made  a  statement  of  his  account,  show- 
ing a  balance  due  his  employers:  Held,  this  was  evidence  that 
the  amount  was  due  in  a  suit  against  the  sureties  for  his  con- 
duct.^ But  where  a  bank  cashier,  before  and  after  his  dismissal 
from  office,  verbally  and  in  writing,  admitted  that  defalcations 
had  before  such  times  been  made  by  him,  and  none  of  such 
admissions  were  made  contemporaneously  with  the  acts,  but  re- 
lated to  past  transactions,  it  was  held  that  such  admissions  were 
not  a  part  of  the  res  gestae^  and  were  not  evidence  against  the 
sureties  on  the  cashier's  official  bond.^  A  county  treasurer 
continued  to  act  as  such  one  day  after  his  term  of  office  expired, 
and  received  money  and  gave  receipts  for  it  oji  that  day:  Held, 
his  sureties  were  liable  for  the  money  received  by  him  on  that 
da}",  and  his  receipts  for  money  then  given  to  tax  collectors  were 
jpriina  facie  evidence  of  the  receipt  of  the  money  as  against  his 
sureties.*  In  a  suit  against  a  justice  of  the  peace  and  his  sure- 
ties for  money  collected  by  him  and  not  paid  over,  it  was  held 
that  his  letters  written  while  in  office  to  the  execution  plaintiff, 
acknowledging  the  receipt  of  the  money  and  a  demand  for  pay- 
ment, and  also  containing  a  promise  to  pay,  were  competent  evi- 
dence.* In  an  action  against  the  sureties  on  a  constable's  official 
bond,  to  recover  damages  for  his  default  in  not  returning  an  at- 
tachment, it  was  held  that  evidence  that  the  constable  pointed  to 
a  wagon  and  horses,  and  said  the  property  attached  was  there, 
that  the  plaintiff  in  attachment  asked  where  the  remainder  of  the 
property  was,  and  the  constable  said  he  had  permitted  the  owner, 
against  whom  the  attachment  ran,  to  take  some  horses  to  get  them 
shod,  was  admissible  as  part  of  the  res  gestae!^ 

'  Pendleton  v.  Bank  of  Kentucky,  1  '  Parker  v.  The  State,  8  Blackf.  (Tnd.) 

T.  B.  Mon.  (Ky.)  171.  292. 

^  Lysaght  v.  Walker,  5  Bligli  (N.  R.)  «  Dobbs  v.  The  Justices,  17  Ga.  624. 

1;  Id.  2  Dow.  &  Clark,  211.  Holding'  that  declarations  of  a  sheriff', 

^  Stetson  V.  City  Bank,  2  Ohio  St.  167.  after  the  return  day  of  an  execution, 

*  Placer  County  v.  Dickerson,  45  Cal.  but  while  he  is  still  in  office,  that  he 

12.  had  collected  the  money,  are  not  com- 


660  EVIDENCE. 

§  522.  HoTV  far  entries  or  returns  made  by  a  public  officer  are 
evidence  against  his  surety. — The  entries  made  by  an  officer  in 
public  books  while  in  discharge  of  his  duty,  or  returns  made  by 
him  to  the  public  authorities,  are  generaWj  p7'i7najncie,'bxit  not 
conclusive  evidence  against  his  sureties  of  the  facts  thus  stated. 
The  returns  of  a  receiver  of  the  government  to  the  treasury 
department,  showing  the  receipt  of  money  by  him,  were  held  to 
be  prima  Jacie,  but  not  conclusive  evidence,  in  an  action  by  the 
p'overnment  aijainst  the  sureties  on  his  bond.  The  court  said 
the  sureties  might  show  that  he  received  no  money,  or  less  than 
he  reported.  "  The  accounts  rendered  to  the  department  of 
money  received,  properly  authenticated,  are  evidence,  in  the  first 
instance,  of  the  indebtedness  of  the  officer  against  the  sureties, 
but  subject  to  explanation  and  contradiction.  They  are  responsi- 
ble for  all  the  public  moneys  which  w^ere  in  his  hands  at  the  date 
of  the  bond,  or  that  may  have  come  into  them  afterwards  and 
not  properly  accounted  for;  but  not  for  moneys  which  the  officer 
may  choose  falsely  to  admit  in  his  hands  in  his  accounts  with  the 
government."'  Entries  in  the  books  of  a  state  treasurer,  show- 
ing the  amount  which  ought  to  be  in  the  state  treasury,  are  not 
conclusive  evidence  against  his  sureties  that  such  amount  was  in 
the  treasury."  So,  the  settlements  made  by  a  county  treasurer 
with  the  county  court  are  not  conclusive  on  his  sureties,  but  may 
be  explained  or  disproved  by  them.'  So,  if  a  city  treasurer  in- 
trusted with  the  safe  keeping  of  public  money,  upon  his  election 
for  a  second  term,  transfers  to  his  books  for  tliat  term  and  charges 
himself  with  the  balance  of  money  for  which  he  is  accountable  at 
the  end  of  his  first  term,  it  will  be  competent  for  the  sureties  on 
his  bond  for  the  second  term  to  show  in  exoneration  of  their  lia- 
bility, that  the  balance  so  transferred  and  charged  was  not  on 
hand  in  cash  at  the  time,  but  had  previously  been  misapplied  by 
the  officer."*  The  dockets  and  records  of  a  court,  showing  that 
money  has  been  received  by  the  marshal  or  his  deputies  under 

petent  against  his  sureties,  see  Trous-  -  Stnie  v.  Rhoades,  6  Nevada,  352. 

dale  V.  Philips,  2  Swan  (Tenn.)  384.  '^  Nolly  v.  Calloway  County  Court,  11 

'  United  States  v.  Boyd,   5  Howard  Mo.  447.     See,  also,    on  this   subject, 

(TJ.  S.)  29,  per  Nelson,  J.;  Bissell  v.  Townsend  r.  Everett,  4  Ala.  607;    Su- 

Saxton,  66  New  York,  55;  contra,  Ba-  pervisors  of  Washington  Co.  v.  Dunn, 

ker  V.   Preston,   1   Gilmer   (Va.)  235.  27  Gratt.  (Va.)  608. 

See,  also,  Morley  v.  Town  of  Metamo-  *  Mann  v.  Yazoo  City,  31  Miss.  574. 
ra,  78  111.  394. 


ENTKIES   MADE    BY    DECEASED   PRINCIPAL.  661 

executions,  have  been  held  competent  evidence  against  his  sure- 
ties, and  conclusive  until  reversed  by  competent  authority.^  So, 
a  sheriff 's  return  on  an  execution,  showing  the  collection  of  money 
thereon,  has  been  held  to  be  conclusive  evidence  of  such  facts 
against  the  sureties  on  his  official  bond  in  a  suit  against  them  for 
a  failure  of  the  officer  to  pay  over  such  money.''  Where  a  judg- 
ment rendered  by  a  justice  of  the  peace  was  entered  satisfied  by 
him,  it  w^as  held  that  in  the  absence  of  a  fraudulent  combination 
between  the  creditor  and  the  justice  to  defraud  the  surety,  such  en- 
try of  satisfaction  was  conclusive  evidence  against  the  surety  of 
the  receipt  of  the  money  by  the  justice.  The  court  said:  "  When 
a  judgment  of  a  justice  of  the  peace  is  entered  satisfied,  the 
plaintiff,  in  order  to  obtain  his  money,  must  resort  to  the  jus- 
tice. He  cannot  take  out  execution  on  the  judgment  after  satis- 
faction is  entered  on  the  docket,  notwithstanding  he  might  know 
that  the  satisfaction  had  been  entered  without  a  payment  of 
money.  The  official  entry  on  the  docket  is.  conclusive  against  the 
justice  and  his  sureties,  and  the  plaintiff  has  a  right  of  action 
against  them  for  his  money,  without  any  reference  to  the  manner 
in  which  the  judgment  has  been  satisfied."  ° 

§  523.  When  entries  made  by  deceased  principal  evidence 
against  surety,  etc. — The  bond  of  a  collector  of  taxes  was  con- 
ditioned for  the  faithful  discharge  of  his  duties,  "  and  that  he 
should  keep  a  full,  true  and  perfect  account  in  writing  of  his 
employment,  collections  and  receipts,     *     as  well  as  deliver  np* 

*  all  the  books  and  accounts  entrusted  to  his  care."  Held, 
that  a  collecting  book  received  by  him  from  his  predecessor,  and 
by  him  delivered  to  his  successor,  which  contained  the  names  of 
the  parishioners  and  the  sums  at  which  they  were  rated,  and  the 
usual  marks  made  by  the  collector  opposite  some  of  such  names, 
by  which  he  indicated  the  receipt  of  the  sums  assessed  on  them 
(the  collector  being  dead),  were  evidence  in  a  suit  against  his 
surety.  It  was  a  public  book,  and  it  was  part  of  the  duty  for 
which  the  surety  undertook  that  it  should  be  kept  and  delivered.'* 

'  Williams  v.  United  States,  1  How-  his  hands,    see  Lane  v.  The  State,  27 

ard  (U.  S.)  290.  Ind.  108. 

^Bagot  '('.   The  State,  33  Ind.  262;  ^Modisett  r.  The  Governor,  2  Blaclcf. 

Price  V.  Cloud,  6  Ala.   248.     Holding  (Ind.)  135,  per  Ilolman,  J. 

that  an  account  current  iiled  by  an  ad-  ■*  Goss  r.  Watlington,  6  Moore,  355; 

ministrator  is  2)7'inm  facie    evidence  Id.  3  Brod.  &  Bing.  132. 
against  his  sureties  of  the  amount  in 


662  EVIDENCE. 

An  entry  made  by  a  deceased  collector  of  taxes  in  a  private  book 
kept  by  him  for  liis  own  convenience,  vvliereby  he  charged  him- 
self with  the  receipt  of  money,  was  held  to  be  evidence  against 
his  surety  of  the  fact  of  the  receipt  of  siicli  money  in  an  action 
on  a  bond  conditioned  for  tlie  dne  payment  of  the  taxes  by  the 
collector,  although  the  parties  by  whom  the  monej'  had  been  paid 
were  alive  and  might  have  been  called  as  witnesses.  This  was 
held,  upon  the  general  principle  that  the  entry  was  to  the  preju- 
dice of  the  party  who  made  it,^  In  an  action  on  a  bond  given  to 
bankers,  conditioned  for  the  fidelity  of  a  clerk,  entries  of  the  re- 
ceipt of  sums  of  money  made  by  the  clerk  in  books  kept  by  him 
in  the  discharge  of  his  duties  as  clerk,  are,  after  his  death,  evi- 
dence against  his  sureties  of  the  fact  of  tlie  receipt  of  the  money. 
The  condition  of  the  bond  was  that  the  clerk  should  "faithfully 
discharge  his  duty  as  clerk.  It  is  part  of  the  duty  of  a  banker's 
clerk  to  make  entries  (in  the  books  kept  by  him)  of  all  sums  of 
money  received  by  him  for  his  employers;  such  entries  made  by 
the  clerk  must,  as  against  his  sureties  who  contracted  for  the 
faithful  discharge  of  his  duty,  be  taken  prima  facie  to  have  been 
made  by  him  in  discharge  of  that  duty,  *  because  the  entries 
were  made  by  him  in  those  accounts  which  it  was  his  duty  as  clerk 
to  keep,  and  which  tlie  defendants  had  contracted  that  he  should 
faithfully  keep.""  The  entries  made  by  a  clerk  of  a  division 
court,  in  the  course  of  his  business,  in  books  kept  in  pursuance 
of  the  provisions  of  an  act  to  that  effect,  have  been  held  comj^e- 
tent  evidence  against  his  sureties.^ 

§  524.  When  and  how  far  judgment  against  principal  evi- 
dence against  surety. — Although  there  is  a  conflict  of  authority 
on  the  subject,  it  seems  to  be  the  better  opinion  that,  except  in 
cases  where,  upon  the  fair  construction  of  the  contract,  the  surety 
may  be  held  to  have  undertaken  to  be  responsible  for  the  result 
of  a  suit,  or  when  he  is  made  privy  to  the  suit  by  notice,  and  the 
opportunity  being  given  him  to  defend  it,  a  judgment  against  the 
principal  alone  is,  as  a  general  rule,  evidence  against  the  surety 
of  the  fact  of  its  recovery  only,  and  not  of  any  fact  which  it  was 
necessary  to  find  in  order  to  recover  such  judgment.^     This  was 

'  Middleton  v.   Melton.  10  Barn.  &  marsh    v.    Genge,    3    Man.   &    Ryl. 

Cress.  317;  Id.  5  Man.  &  Ryl.  264.  4-2. 

nVhitnash   v.   George,  8  Barn.   &  ^  jjij^n^fleld  r.  Gould,  10  Up.  Can. 

Cress.  556,  per  Lord  Tenterden.    Same  C.  P.  R.  9. 

case  reported  undjr  name  of  Whit-  *  Thomas  v.  Hubbell,  15  New  York, 


JUDGMENT    AGAINST   PKINCIPAL   ALONE.  663 

lield  where  tlie  suit  ao-ainst  the  principal  alone  was  defended  by 
the  surety  as  agent  of  the  principal.  In  this  case  the  court  said: 
"  I  am  aware  of  no  case  where  a  mere  surety  is  bound  to  defend 
in  order  to  save  himself  from  injury  by  a  judgment  or  decree 
against  his  principal,  even  though  lie  have  notice  both  from  the 
creditor  and  tlie  principal.  It  is  the  business  of  the  latter  to 
save  his  surety  from  all  harm.  The  princij)al  is  the  indemnitoV, 
and  without  being  personally  sued,  I  do  not  see  u^^on  what  ground 
the  surety  could  claim  to  defend  as  a  matter  of  right  for  any-pur- 
pose."  ^  Where  the  effect  of  the  undertaking  of  the  surety  is 
that  he  shall  be  liable  for  the  result  of  a  suit  against  his  principal, 
he  is  conclusively  bound  by  the  judgment  in  sucii  suit, 
even  though  he  is  not  a  party  to  it,  and  have  no  notice  of  it. 
Thus,  a  sequestration  bond  provided  that  if  the  plaintiffs 
"  shall  pay  or  cause  to  be  paid  all  such  damages  as  may  accrue 
in  case  it  shall  appear  and  be  decreed  that  said  sequestration  was 
wrongfully  sued  out,"  then  the  bond  should  be  void.  Judgment 
was  rendered  against  the  plaintiffs,  and  it  was  held  that 
it  was  conclusive  evidence  against  the  sureties  that  the  property 
sequestered  did  not  belong  to  the  plaintiffs.  The  sureties  agreed 
to  be  liable  if  it  was  "  decreed  "  that  the  sequestration  had  been 
wrongfully  sued  out,  and  it  had  been  so  decreed.'^  The  condition 
of  the  official  bond  of  the  receiver  of  an  insolvent  insurance  com- 
pany was  that  he  should  faithfully  conduct  himself  in  his  office, 
faithfully  perform  its  duties  as  required  by  law,  and  in  obedience 
to  the  directions  of  the  court,  and  truly  and  faitlifully  account  for 
and  pay  over  the  money  of  the  company  coming  to  his  hands. 
After  due  proceedings  and  a  full  hearing,  a  justice  of  the  court 
pronounced  the  receiver  in  default,  and  that  a  certain  snin  was 
due  from  him.  Held,  the  order  of  the  court  was  competent  evi- 
dence against  the  sureties  of  the  receiver,  both  of  the  default  and 
of  the  amount  due.''     These  rules  are  plain  and  simple,  and  com- 

405;  Lartigue   v.   Baldwin,    5  Martin  '  Jackson  t?.  Griswold,  4  Hill  (N.Y.) 

(La.)  0.  S.  193;    Firemens  Ins.  Co.  v.  522,  per  Cowen,  J. 

McMillan,  29  Ala.  147;  Moss  v.  Mc-  ^  Jones  i;.  Doles,  :3  La.  An.  588.  See, 

Cullougb,  5  Hill  (N.  Y.)  131;  Arring-  also,  Lee  v.  Clark,  1  Hill  (N.  Y.)  56; 

ton  V.  Porter,  47  Ala.  714;  Douglas  v.  Poillon  v.  Volkenning,  11  Hun  (N.Y.) 

Rowland,  24  Wend.  85.     See,  also,  on  385;  Chamberlain  v.   Godfrey,  36  Vt. 

this  subject.   Stoops  v.  Wittier,  1  Mo.  380. 

Appl.  Rep.  420.  '  Commonwealth  v.  Gould,  118  Mass. 

300. 


664:  EVIDENCE. 

mend  themselves  to  the  reason,  but  they  have  not  always  been 
observed  in  the  cases  where  the  fact  would  warrant  their  appli- 
cation. 

^  525.  Cases  holding  judgment  against  principal  prima  facie 
evidence  against  surety,  etc. — In  an  action  against  a  constable  and 
the  sureties  on  his  official  bond,  to  recover  damages  for  taking 
the  property  of  the  plaintiff  under  a  writ  of  replevin  against  a 
third  person,  a  verdict  and  judgment  against  the  constable  in  an 
action  of  trespass  for  taking  the  property,  was  held  to  be  pj'ima 
facie  evidence  against  the  sureties,  althougli  they  had  no  notice 
of  the  suit  against  the  constable.^  A  judgment  was  recovered 
a^-ainst  a  receiver  of  the  effects  of  a  partnership.  Held,  tliis 
was  prima  facie  evidence  against  the  sureties  on  his  bond.'^ 
A  transcript  of  the  record  of  a  suit  brought  in  one  of  the 
United  States,  on  a  warranty  contained  in  a  bill  of  sale  of  a 
slave  against  a  surety  therein,  where  the  principal  had  notice 
of  its  pendency,  has  been  held  to  be  evidence  in  another  of 
those  states,  against  the  principal,  of  every  fact  decided  between 
the  immediate  parties  to  such  suit,  and  if  such  fact  was  found 
prima  facie  evidence  at  least,  that  the  principal  had  no  title  to 
the  slave.^  Where  a  motion  was  made  against  a  sheriff  for  the 
default  of  his  deputy,  upon  which  the  sheriff  with  the  assent  of 
•the  deputy,  but  without  the  knowledge  of  his  sureties,  confessed 
judgment,  it  was  held  the  record  of  this  judgment  was  admis- 
sible evidence  against  the  dej)uty's  sureties  upon  a  motion  by 
the  sheriflt'  against  the  deputy  and  his  sureties.^  It  has  also  been 
held  that  a  judgment  against  a  tenant  for  rent,  is  admissible  in 
evidence,  in  an  action  against  a  surety  on  the  lease. ^ 

§  526.  Cases  holding  judgment  against  principal  conclusive 
against  surety — Impeaching  judgment  for  fraud,  etc. — A  judg- 
ment was  recovered  against  a  partj^,  and  he  was  arrested  on 
execution,  and  entered  into  a  recognizance  with  surety  to  ap- 
pear for  examination  as  a  poor  debtor.  He  did  not  appear,  and 
in  a  suit  against  the  surety  he  offered  to  prove  that  the  principal 

'  State  V.  Jennings,    14  Ohio  St.  73.  ^  Jacobs  v.  Hill,  2  Leigh  (Va.)  39:3. 

See,  also,  on  this  subject,  M 'Broom  r.  ^  Strong  «'.  Giltinan,   7  Philadelphia 

The  Governor,  4  Port  (Ala.)  90.  (Pa.)  176.      Holding  that  the  return 

^  Whitehead  t'.  Woolfolk,  3  La.  An.  of  a  sheriff  non  est  iiivtntiis  is  prima 

42.  facie  evidence  against  bail  that  the 

^Thomas  v.  Beckmau,    1  B.    Mon.  principal  is  not  found;   see   Hall  v. 

(Ky.)  29.  White,  27  Ct.  488. 


JITOGMENT   AGAINST    SURETY.  665 

]iad  paid  the  debt  before  the  original  judgment  was  recovered. 
Held,  he  could  not  be  permitted  to  do  so,  and  the  judgment  \v;is 
conclusive  evidence  of  the  debt  thereby  ascertained,  both  against 
the  principal  and  the  surety.^  If  a  creditor  makes  objections  to 
prisoner's  discharge  under  an  insolvent  debtor's  act,  and  they 
are  decided  against  him,  it  has  been  held  that  he  cannot  after- 
wards bring  the  same  matters  in  question  in  a  suit  against  tlie 
sureties  on  the  bond  for  the  prison  rules.^  In  a  suit  against  sure- 
ties on  a  bond  conditioned  for  the  payment  of  sucli  costs  as  the 
obligee  shall  recover  against  the  principal  in  a  suit  then  pending, 
to  which  the  sureties  are  not  parties,  it  is  open  to  the  sureties  to 
impeach  the  judgment  rendered  in  the  last  named  suit  upon  the 
ground  of  fraud,  by  showing,  that  for  the  purpose  of  defrauding 
the  sureties,  and  by  collusion  between  the  parties,  the  judgment 
was  rendered  for  more  than  the  just  amount.^  W  assigned  in 
writing  to  C  and  M  a  judgment  against  H,  the  assignment  con- 
taining this  condition:  "If  the  said  C  and  M  shall  fail  in  col- 
lecting said  judgment,  after  prosecuting  said  H  to  insolvency, 
then  I  agree  to  be  responsible  for,  and  hereby  guaranty  the  sum 
of  $400  of  said  judgment  to  them,  and  no  more."  C  and  M 
sued  H  on  the  judgment,  and  he  set  up  the  defense  of  payment, 
and  sustained  it.  'Bo  notice  of  this  defense  was  given  to  W. 
In  a  suit  on  the  guaranty  it  was  held  that  W  was  not  estopped 
by  the  judgment  in  favor  of  H,  from  showing  that  II  did 
owe  the  money  and  that  it  could  have  been  collected  from 
him.^ 

§  527.  How  far  judgment  against  surety  evidence  against 
principal. — In  an  action  of  assumpsit  by  a  surety  against  his  prin- 
cipal to  recover  indemnity  for  money  paid  for  the  principal  by 
the  surety,  it  was  held  that  the  record  of  a  judgment  (showing 
the  relation  of  the  parties)  against  the  surety,  although  rendered 
M'ithout  notice  to  the  principal,  was  prima jfacie  evidence  of  the 
sum  due  by  the  principal,  of  the  obligation  of  the  surety  to  pay, 
and  of  the  assent  of  the  principal  to  the  payment,  and  also  that 
an  execution  issued  in  said  cause  against  the  surety,  and  the  re- 
turn upon  it  showing  the  payment  of  the  monej^,  was  evidence 

^Wnjv.  Lewis,  115  Mass.  26.  utoiy  provision,  see  State  v.  Pike,  74 

*  Brevard  v.   Wylie,    1   Richardson  Nor.  Car.  631. 

Law  (So.  Car.)  38.     Holding-  a  judg-  *M;inufacturiiig  Co.  v.  Worster,  45 

ment  against  the  principal  conclusive  New  Hamp.  110. 

against  the  surety,  by  reason  of  a  stat-  *  Woodward  v.  Moore,  13  Ohio  St.  136. 


CGG  •       EVIDENCE. 

of  such  payment.'  In  sucli  a  case,  -where  tlic  record  did  not  show 
the  fact  of  suret^'sliip,  it  was  held  that  it  might  be  shown  by  other 
evidence.''  Where  a  judgment  has  been  rendered  against  the 
principal  and  surety  in  a  bond,  and  the  surety  upon  satisfying 
the  judgment,  sues  the  principal  for  indemnity,  the  principal  can- 
not set  up  that  the  bond  was  founded  upon  an  illegal  considera- 
tion; that  is  matter  of  defense  which  should  have  been  set  up  in 
the  first  suit,  and  that  suit  is  conclusive  of  the  question.^ 

§  528.  Judgment  rendered  against  principal  in  favor  of  surety 
without  notice,  no  evidence  in  another  state. — A  statute  of  Ten- 
nessee authorized  sureties  who  had  j^aid  the  debt  of  their  princi- 
pal, to  obtain  judgment  against  him  by  motion  and  without  no- 
tice to  him.  A  judgment  rendered  in  that  way  against  a  princi- 
pal, who  at  the  time  of  the  rendition  thereof  was  a  citizen  of 
Louisiana,  was  held  to  be  no  evidence  of  indebtedness  against 
the  principal  in  a  suit  for  indemnity  brought  against  him  in 
Louisiana  by  the  surety.  The  court  held,  that  without  notice  to 
or  appearance  by  the  principal,  the  judgment  was  of  no  effect,  and 
said:  "'We  cannot  believe  ourselves  bound  to  enforce  against  our 
citizens,  or  to  consider  binding  on  them,  a  judgment  obtained 
under  such  a  law,  which  is  derogatory  to  the  first  principles  of 
justice."  * 

§  529.  When  judgment  against  one  surety  evidence  against 
a  co-surety. — Two  sureties,  A  and  B,  were  bound  by  separate 
bonds,  executed  at  different  times,  for  the  conduct  of  a  cashier, 
who  made  default,  for  which  both  sureties  were  liable.  A  was 
sued  for  such  default,  and  gave  notice  thereof  to  B.  Judgment 
was  recovered  against  A,  which  he  paid,  and  sued  B  for  contribu- 
tion. Held,  the  judgment  against  A  was  prima  facie  evidence 
against  B  of  the  fact  of  the  defalcation,  the  time  of  its  occur- 
rence, and  its  amount.^  In  an  action  for  contribution  between 
co-sureties,  the  record  of  a  judgment  recovered  by  the  creditor 
against  the  principal  and  one  of  the  sureties,  to  which  the 
other  surety  is  not  a  party,  is  competent  evidence  to  prove  the 
rendition  of  such  judgment,  by  way  of  inducement  to  evi- 
dence that  the  surety  against  whom  it  was  rendered  has  paid 

'  Snider  v.  Greathouse,  16  Ark.  72;  418,  per  Morphy,  J.     To  the  same  ef- 

Chipman  v.  Fanibro,  16  Ark.  291.  feet,  see  Sevier  v.  Rodclie,  51  Mo.  580. 

'  Bone  V.  Tony,  16  Ark.  83.  ^  Breckinridge   v.   Taylor,   5    Dana 

'  Pitts  V.  Fugate,  Admx.  41  Mo.  405.  (Ky.)  1 10.     See,  also,  Cobb  v.  Haynes, 

'  .McNairy  v.  Bell,  5  Robinson  (La.)  8  B.  Mon.  (Ky.)  137. 


JUDGMENT   AGAINST   SHEEIFF.  G67 

it.'  One  of  four  guarantors  was  sued  for  the  debt  of  tlie  principal 
and  a  judgment  was  recovered  against  him,  which  lie  paid,  and 
sued  his  co-guarantors  for  contribution.  Held,  they  were  not  con- 
cluded by  the  judgment  against  the  plaintiff  (they  not  having 
had  any  notice  of  the  suit  in  which  it  was  rendered),  but  they 
might  make  every  defense  they  could  have  made  in  the  original 
suit,  if  they  had  been  notified,  including  want  of  due  diligence 
by  the  creditor  in  endeavoring  to  collect  the  debt.^ 

§  530.  How  far  judgment  against  sheriff  evidence  against 
sureties  on  his  official  bond. — As  to  whether  a  judgment  against 
a  sherift"  or  constable  for  official  misconduct  is  competent  evi- 
dence of  that  fact  against  the  sureties  on  his  official  bond,  and  if 
so,  what  is  its  effect,  is  a  question  upon  which  there  is  great  and 
irreconcilable  conflict  of  authority,  and  it  is  difficult  to  determine 
where  tlie  preponderance  lies.  Some  of  the  cases  hold  tiiat  such 
a  judgment  is  no  evidence  at  all  against  such  sureties.  Thus,  a 
suit  was  brouglit  against  a  sheriff  and  the  sureties  on  his  official 
bond,  the  ground  of  action  being  that  the  sheriff  had  committed 
a  trespass  by  levying  an  execution.  A  judgment  had  been  pre- 
viously recovered  against  the  sheriff  in  a  suit  against  him  alone 
for  the  same  trespass.  Held,  that  this  judgment  was  no  evi- 
dence against  the  sureties,  even  though  they  had  been  notified  of 
the  pendency  of  the  suit  in  which  it  was  recovered.  The  court 
said  that  tlie  default  or  misconduct  of  the  sheriff"  must  be  j^roved 
the  same  as  if  no  judgment  had  been  rendered.  Where  the 
surety  undertakes  that  he  will  do  a  specific  act  to  be  ascertained 
in  a  given  way,  as  that  he  will  pay  a  judgment,  there  the  judg- 
ment is  conclusive  on  him.  "  But  this  rule  rests  upon  the  terms 
of  the  contract.  In  the  case  of  official  bonds,  the  sureties  under- 
take in  general  terms  that  the  principal  will  perform  his  official 
duties.  They  do  not  agree  to  be  absolutely  bound  by  any  judg- 
ment obtained  against  him  for  official  misconduct,  n^r  to  pay 
every  such  judgment.  They  are  only  held  for  a  breach  of  their 
own  obligations.  It  is  a  general  rule  that  no  party  can  be  so 
held  without  an  opportunity  to  be  heard  in  defensp.  This  right 
is  not  divested  by  the  fact  that  another  part}^  has  defended  the 
same  cause  of  action  and  been  unsuccessful."^     There  is  another 

1  Preslar  v.  Stallworth,  37  Ala.  402.  ^  pi^o  p_  Webster,  14  Cal.  202,  per 

^  Kramph's  Ex'x.  v.   Hatz' Exrs.  52      Baldwin,  J.    To  a  similar  effect,  see  Lu- 

Pa.  St.  5J5.  cas  v.  The  Governor,  6  Ala.  826;  Gov- 


668  ■        EVIDENCE. 

class  of  cases  wln<!li  hold  tliat  a  judgment  against  the  officer  alone 
for  official  misconduct,  is  ^;r/;;i«  facie  evidence  of  that  foct 
against  liis  sureties,  but  may  be  rebutted  by  them.'  It  has  also 
been  held  that  such  a  judgment  is  conclusive  evidence  of  the 
facts  found  by  it  against  the  sureties  of  the  officer.  "Where  a 
judgment  was,  without  fraud  or  collusion,  recovered  against  a 
constable  alone  for  a  wrongful  attachment  of  the  goods  of  a  third 
person,  it  was  held  to  be  conclusive  evidence,  both  as  to  damages 
and  costs,  in  an  action  against  him,  and  the  sureties  on  his 
official  bond,  such  bond  being  joint,  and  not  joint  and  several. 
The  court  said  there  was  great  conflict  of  authority  on  the  sub- 
ject, and  the  case  would  be  decided  on  principle.  The  judgment 
was  conclusive  against  the  constable.  The  bond  was  joint,  and 
not  joint  and  several.  If  the  sureties  were  allowed  to  defend,  the 
constable  would  get  the  benefit  of  the  defense.  A  joint  judg- 
ment must  be  rendered  or  none,  and  it  more  accorded  with  legal 
principles  that  the  judgment  should  be  conclusive  against  all. 
The  court  intimated  that  if  the  bond  had  been  joint  and  several, 
the  judgment  would  have  been  held  on\j prima  facie  evidence, 
and  the  sureties  have  been  allowed  to  question  it.^ 

§  531.  When  judgment  against  principal  on  bond  to  sheriff 
evidence  against  surety  therein,  etc. — Suit  was  brought  against 
a  high  sherifi"  for  the  default  of  his  deputy.  The  deputy  had 
notice  of  this  suit,  and  defended  it,  and  judgment  was  recovered 
against  the  high  sheriffi  The  high  sheriff  then  sued  the  deputy 
and  the  sureties  on  his  bond.  The  condition  of  the  bond  was 
that  the  obligors  "should  in  all  respects  indemnify  and  save 
harmless  the  sheriff  and  all  other  persons  from  any  loss  and  dam- 
age in  anywise  arising  from  the  conduct  of  the  said  deputy  in 
said  office,"  Held,  the  judgment  against  the  high  sheriff  was 
conclusive  evidence  of  the  deputy's  default  against  both  him  and 
his  sureties.  The  court  said  the  bond  w^as  the  same  in  leo^al 
effect  as  if  it  had  provided  for  the  indemnification  of  the  sheriff 

ernor  v.  Shelby,  2  Blackf.  (Ind.)  26;  '^  Tracy  r.  Goodwin,  5  Allen,  409,  per 
White  V.  The  St^te,  1  Blackf.  (Ind.)  Chapmanj  J.  Holding  a  judgment 
557.  against  the  ofBcer  conclusive  against 
'Atkins  V.  Baily,  9  Yerg.  (Tenn.)  the  surety,  see  Evans  v.  Comraon- 
111;  Mullen  v.  Scott,  9  La.  An.  173;  monwealth,  8  Watts  (Pa.)  398;  Mas- 
City  of  Lowell  V.  Parker,  10  Met.  ser  v,  Strickland,  17  Serg.  &  Rawle 
(Mass.)  309;  Treasurers  v.  Temples,  2  (Pa.)  354;  Eagles  i\  Kern,  5  Wharton 
Spears  Law  fSo.  Car.)  48.  (Pa.)  14-4, 


JUDGMENT   AGAINST   ADMINISTEATOE,  G69 

against  all  judgments  on  account  of  the  deputy.^  Certain  sure- 
ties entered  into  a  bond  of  indemnity  to  a  sheriff,  conditioned  to 
indemnify  him  figainst  all  snits,  actions,  costs,  charges  and  dam- 
ages, for  selling  certain  goods.  Judgment  was  recovered  against 
him  by  the  owner  of  the  goods  in  a  suit  of  which  the  surety  had 
no  notice.  Held,  in  a  suit  by  the  sheriff  against  the  sureties  on  the 
bond,  that  the  judgment  was  evidence  against  them  "  to  show 
that  the  very  thing  had  happened  which  the  surety  contracted 
that  his  principal  should  not  allow  to  happen.  Of  course  it  was 
not  conclusive  of  the  amount,  for  the  surety  might  have  shown 
that  the  amount  was  increased  by  reason  of  some  fault  of  the 
sheriff,  for  which  the  bond  was  not  intended  to  secure  him."  ^  It 
has  been  held  that  "a  rule  absolute  against  the  sheriff,  ordering 
him  to  pay  over  to  the  plaintiff  the  amount  due  upon  his  fi.fa.^ 
is  conclusive  against  the  principal,  but  jpr'ima  facie  evidence 
only  against  the  securities  in  an  action  upon  the  bond "  of 
the  sheriff.^ 

§  532.  "When  judgment  against  administrator  conclusive  evi- 
dence against  his  surety. — A  settlement  made  by  an  executor  or 
administrator  with,  or  a  judgment  rendered  against,  him  in  his 
official  capacity  by  the  court  in  which  his  accounts  must  be  set- 
tled, is  generally  held  to  be  conclusive  evidence  against  his  sure- 
ties of  the  facts  thus  established,  although  the  sureties  were  not 
parties  to,  and  had  no  express  notice  of,  the  proceedings.*  The 
reason  for  this  rule  is  well  illustrated  by  the  following  extracts 
from  opinions  in  cases  where  it  has  been  held:  "As  a  general 
rule,  sureties  upon  official  bonds  are  not  concluded  by  a  decree  or 
judgment  against  their  principal,  unless  they  have  had  their  day 
in  court  or  an  opportunity  to  he  heard  in  their  defense;  but  ad- 

^  Crawford  v,  Turk,  24  Gratt.  (Va.)  prima  facie  evidence  against  the  sure- 

176.  ty,  which  may  be  rebutted  by  him;  see 

-Huzzard  v.  Nagle,  40  Pa.  St.  178,  Ordinary  v.   Wallace,    1    Richardson 

per  Lowrie,  C.  J.  Law  (So.  Car.)  507;  Ordinary  v.  Wal- 

^  Crawford  v.  "Word,  7  Ga.  445,  per  lace,  2  Richardson  Law  (So.  Car.)  460; 

Lumpkin,  J.;  Taylor  v.   Johnson,  17  Ordinai-y  ».  Carlile,  1   McMullan   Law 

Ga.  521.  (So.  Car.)  100;  Ven-et  v.   Belanger,  6 

^Garbert>.  Commonwealth,  7  Pa.  St.  La.  An.  109;  Canal  &  Banking  Co.  v. 

265;  Hobbs  v.  Middleton,  1  J.  J.  Marsh  Brown,  4  La.  An.  545.     See,  also,  on 

(Ky.)   176;  Ralston  v.  Wood,    15  111.  this  subject,  as  to  confession  of  judg- 

159;  Williamson  V.  Howell,  4  Ala.  693.  ment  by  an  executor,  Iglehart  r.  The 

In  some  cases  it  has  been  held  that  State,  2  GUI.  &  Johns.  (Md.)  235. 
such  a  judgment  or  settlement  is  only 


670  EVIDENCE. 

ministration  bonds  seem  to  form  an  exception  to  this  general  rule, 
and  the  sureties  thereon  in  respect  to  their  liability  for  the  default 
of  the  principal  seem  to  be  classed  with  such  sureties  as  covenant 
that  their  principal  shall  do  a  particular  act.  To  this  class  belong 
sureties  upon  bail  and  appeal  bonds,  whose  liability  is  iixed  by 
the  judgment  against  their  principal."*  It  has  also  been  said 
that  such  "sureties  are  in  many  respects  like  the  sureties  in  a 
bail  bond,  and  are  equally  bound  by  the  proceeding  against  tlie 
principal.  The  duty  they  have  assumed  is  that  their  principal 
will  pay  on  demand  all  debts  ascertained  by  judgment  of  a  court 
of  law  against  him  in  his  capacity  of  administrator  if  the  estate 
be  solvent.  His  failure  to  make  payment  is  a  breach  of  the 
administration  bond.'"'  Again,  it  has  been  said:  "The 
law  has  placed  the  sureties  of  executors  and  administrators 
on  a  different  footing  from  other  sureties  and  co-obligors  in 
general.  They  are  not  liable  on  the  administration  bond  until 
a  devastavit  is  judicially  established,  and  as  the  question  of  de- 
vastavit is  all  that  is  controverted  in  the  suit  against  the  executor 
or  administrator,  the  decision  is  conclusive,  not  only  against  the 
executor  or  administrator,  but  against  the  sureties  also.  But  the 
sureties  of  a  sheriff  have  no  such  indulgence.  They  are  liable 
to  be  sued  on  the  sheriff's  bond  in  the  first  instance,  either  with 
or  without  the  sheriff,  before  anything  has  been  determined  as  to 
the  sheriff's  default."^  A  judgment  in  favor  of  an  administra- 
tor is  conclusive  in  favor  of  his  sureties,  as  well  as  against  them." 
As  fraud  vitiates  everything  with  which  it  is  tainted,  the  sureties 
in  an  administration  bond  may  show  that  the  judgment  against 
their  principal  was  obtained  by  fraud  and  collusion.^  "Where,  in 
a  suit  against  the  sureties  on  an  administration  bond,  a  decree  of 
the  ordinary  against  the  administrator  was  offered  in  evidence, 
it  was  lield  competent  for  the  sureties  to  show  that  the  adminis- 
trator at  the  time  of  the  decree  had  removed  from  the  state,  and 
that  the  decree  was,  therefore,  void.® 

§  533.      Ho-w  far  judgment  against  guardian  evidence  against 
his  surety. — A  guardian's  bond  was  conditioned  that  he  should 

'  Per  Sanderson,  C.  J.    in  Irwin  v.  ^  State  r.  Coste,  36  Mo.  437. 

Backus,  25  Cal.  214.  '  Annett  r.   Teny,   35  New  York, 

"^  Per  Dewy,  J.  in  Heard  v.  Lodge,  20  256. 

Pick.  58.  ^  Buckner  v.   Archer,    1   McMullan 

^PerHolman,  J.  in  Governor  i).  Shel-  Law  (So.  Car.)  85. 
by,  2  Blackf.  (Ind.)  26. 


JUDGMENT   AGAINST   GUAEDIAN.  671 

account,  etc.,  "  and  perform  all  orders  and  decrees  of  the  county 
court  by  him  to  be  performed  in  the  premises."  The  guardian 
accounted  before  the  court  and  in  the  presence  of  the  sureties,  and 
a  certain  amount  was  found  due  from  him,  and  a  decree  entered 
therefor.  Held,  this  decree  was  conclusive  on  the  sureties  as  to 
the  amount  of  the  guardian's  liabilities.  The  court  said  this 
would  have  been  so  even  if  the  sureties  had  not  been  present  at 
the  accounting.  "  Whenever  the  surety  has  contracted  in  refer- 
ence to  the  conduct  of  one  of  the  2)arties  in  some  suit  or  pro- 
ceeding in  the  courts,  he  is  concluded  by  the  judgment."  '  Where 
a  decree  was  rendered  against  a  guardian  five  years  after  the 
surety  on  his  bond  had  been  discharged  from  liability,  it  was  held 
that  such  decree  was  admissible  as  evidence  against  the  surety  to 
establish  waste  on  the  part  of  the  guardian  at  some  time,  but  was 
not  alone  sufficient  to  establish  waste  during  the  time  for  which 
the  surety  was  liable.^ 

§  534.  When  decree  against  principal  conclusive  against 
surety  on  injunction  bond. — The  surety  in  an  injunction  bond, 
who  by  his  obligation  undertakes  to  abide  the  decree  of  a  court 
of  chancery,  and  pay  such  damages  as  may  be  awarded  against 
his  principal,  is  conclusively  bound  by  such  decree.  Here  the 
undertaking  does  not  relate  to  the  cause  of  action,  but  to  the  re- 
sult, and  the  surety  having  undertaken  to  become  responsible 
therefor,  is  conclusively  bound  thereby.^  Certain  sureties  signed 
an  injunction  bond  in  a  suit  brought  to  restrain  the  carrying  of 
passengers.  It  was  decided  in  that  suit  that  the  parties  against 
whom  the  injunction  ran,  had  a  right  to  carry  passengers.  In 
a  suit  on  the  injunction  bond  for  damages,  the  sureties  sought 
to  show  that  such  party  had  no  right  to  carry  the  passengers. 
Held,  that  the  sureties  had  voluntarily  assumed  such  a  connec- 
tion with  the  chancery  suit  that  they  were  concluded  by  the  de- 
cree in  it,  so  far  as  the  same  matters  were  in  question,  and  they 
could  not  in  the  suit  against  them,  contest  the  right  of  the  plain- 
tiffs to  carry  the  passengers.* 

1  Shepard  v.   Pebbles,   38  Wis.  373,  ^  Bryant,  Guardian,  v.  Owen,  1  Kel- 

perCole,  J.     Holding  that  a  judgment  ly  (Ga.)  355. 

against  a  guardian  is  only  jonwa/rtc/e  ^Lothrop  v.   Southworth,   5  Mich, 

evidence  against  his  surety,  see  State  436. 

V.    Stewart,   36    Miss.    652;    Bryant,  ■» Towle  v.  Towle,    46  TSTew  Hamp. 

Guardian,  v.  Owen,  1  Kelly  (Ga.)  355;  431. 
Brad  well  v.  Spencer,  16  Ga.  578. 


G73  EVIDENCE. 

§  535.  What  presumptions  arise  from  non-payment  by  prin- 
cipal.— All  ofiicer  will  not  be  presumed  to  liave  ap])lied  public 
funds  to  liis  private  use,  and,  as  a  general  rule,  in  an  action  where 
the  official  conduct  of  an  officer  is  in  question,  his  pecuniary  em- 
barrassments are  not  competent  evidence.  But  where  it  appears 
that  he  has  mixed  the  public  funds  indiscriminately  with  his  own, 
and  has  been  in  the  habit  of  paying  public  demands  from  his 
private  funds,  and  vice  versa,  his  pecuniary  embarassments  may 
be  shown  as  tending  to  prove  a  defalcation.  The  refusal  of  a 
county  treasurer  to  pay  an  order  on  him,  is  of  itself  evidence, 
when  unexplained,  that  there  is  no  money  to  meet  such  demand, 
and  if  money  ought  to  be  in  his  hands  to  pay  it,  such  refusal  is 
evidence  of  a  defalcation,  because  the  presumption  is  that  the 
officer  will  do  his  duty  and  pay  if  there  are  funds.  But  if  he 
alleges,  as  a  reason  for  his  failure  to  pay,  that  the  orders  are  in- 
formal or  illegal,  this  rebuts  the  presumption  arising  from  such 
non-payment.'  The  mere  fact  that  the  maker  of  a  note  provided 
no  funds  to  pay  it  at  the  time  and  place  of  its  maturity,  but  suf- 
fered it  to  be  protested  for  non-payment,  has  been  held  not  to 
ixivm&h.  pri7na  facie  evidence  that  the  maker  was  insolvent  when 
the  note  fell  due."^ 

§  536.  When  surety  estopped  by  recitals  of  his  obligation. — 
As  a  general  rule,  sureties  are  estopped  to  deny  the  recitals  con- 
tained in  the  obligation  signed  by  them.  The  sureties  in  a  bond 
which  recites  that  the  principal  is  sheriff,  are  estopj)ed  from  deny- 
ing the  fact,^  or  showing  that  he  never  took  the  oath  of  office,  and 
consequently  was  not  legally  sheriff.'*  The  sureties  in  an  attach- 
ment bond,  which  recites  that  certain  funds  have  been  seized  on 
attachment,  are  estoj^ped  to  deny  that  fact.""^  Where  a  party  gave 
two  sureties  a  writing,  which  stated  that  he  had  received  a  certain 
amount  of  money  from  the  principal,  and  provided  that  he 
should  save  the  sureties  harmless  to  that  amount,  it  was  held,  in 
a  suit  by  the  sureties  against  him  on  this  instrument,  that  he  w^as 
estopped  to  deny  that  he  had  received  suchsum.°  Parol  evidence 
is  admissible  to  show  that  a  bond  on  its  face,  purporting  to  be 
delivered  absolutely,  was  in  fact  delivered   as   an  escrow.^     A 

'  Nolley  V.   Callaway  County  Court,  *  Police  Jury  v.  Haw,  2  La.(Miller)41. 

11  Mo.  447.  B  Price  v.  Kennedy,  16  La.  An.  78. 

*Ranson  v.  Sherwood,  26  Ct.  437.  «Drury  v.  Fay,  14  Pick.  326. 

'Brown  r.  Grover,  6  Bush  (Ky.)  1.  'Crawford  i'.  Foster,  6  Ga.  202. 


MISCELLANEOUS    CASES.  673 

statute  prohibited  leases  from  being  made  to  slaves.  A  slave 
made  a  lease  witli  surety,  it  being  recited  in  the  lease  that  the 
slave  was  a  free  woman:  Held,  that  the  surety  when  sued  on 
the  lease  might  set  up  the  fact  of  slavery  as  a  defense,  and  was 
not  estopped  by  the  lease  to  show  it.  The  court  said:  "  If  it  be 
true,  that  it  is  against  the  policy  of  the  law  that  a  slave  should 
rent  a  house  in  the  city  of  New  Orleans,  it  is  obvious  that  a  con- 
tract of  this  kind  is  radically  null  and  void,  and  that  whatever 
devices  were  resorted  to  for  the  purpose  of  evading  the  law,  may 
be  met  by  parol  evidence,  adduced  even  in  behalf  of  the  contract- 
ing parties.  The  admission  in  that  contract  of  lease,  that  Mary 
Wise  was  a  free  woman  of  color,  does  not  debar  her  co-defendants 
from  proving  the  contrary.' 

§  537.  Miscellaneous  cases  as  to  evidence  in  suits  against 
sureties. — The  principal  in  an  overdue  note,  paid  a  sum  to  the 
creditor,  and  an  agreement  for  extension  was  signed,  stating  that 
such  sum  was  paid  on  the  principal  of  the  note:  Held,  the  sure- 
ties on  the  note  could  not,  in  a  suit  against  them,  show  that  the 
sum  paid  was  on  account  of  interest,  for  that  would  be  to  contra- 
dict the  writing.^  On  the  same  principle,  where  a  guaranty, 
clear  and  unambiguous  on  its  face,  was  construed  to  be  not  con- 
tinuing, it  was  held  that  it  could  not  be  shown  by  j)arol  evidence 
that  it  was  intended  to  be  continuing.^  Where  two  parties  sign 
a  note,  in  the  body  of  which  one  is  described  as  principal  and  the 
other  as  surety,  and  one  of  them  pays  it,  it  may  be  shown  by  pa- 
rol in  a  suit  by  him  against  the  other,  that  the  note  was  given 
for  a  partnership  debt  for  v/hicli  both  were  equally  liable.*  In 
an  action  on  the  guaranty  of  a  note,  it  is  not  necessary  to  prove 
the  signature  of  the  maker.  It  is  sufficient  if  the  signature 
of  the  guarantor  is  proved.^  If  a  promissory  note,  payable 
to  a  firm  and  indorsed  by  the  firm  for  the  accommodation  of  the 
maker,  is  in  the  hands  of  the  maker,  that  is  sufficient  evidence 
of  notice,  to  a  purchaser  of  the  note,  of  the  fact  of  suretyship.^ 
The  mere  fact  that  the  holder  of  a  note  presented  it  for  payment 
when  due,  and  caused  it  to  be  protested  and  notice  thereof  to 
be  given  to  the  indorser,  does  not  furni&li  jjiima  ^ facie  evidence 

^  Levy  V.  Wise,  15  La.   An.   38,  per  *  Pollard  v.  Stanton,  5  Ala.  451. 

Voorhies,  J.  ^Cooper  «'.  Dedrick,  22  Barb.  (N.Y.) 

2  Haniday  v.  Hart,  30  New  York,  474.  51G. 

3  Hall  r.  Eand,  8  Ct.  560.  « Hendrie  v.  Berkowitz,  37  Cal.  113. 

43 


674  EVIDENCE. 


of  the  use  of  due  diligence  to  collect  the  note.'  Where  the 
court,  in  which  a  recognizance  is  entered,  decides  that  the  prin- 
cipal does  not  appear,  the  sureties  therein  cannot  show  in  a  suit 
against  them,  that  he  did  appear.' 

» Ranson  v.  Sherwood,  26  Ct.  437.  'People  v.  Wolf,  16  Cal.  385. 


I 


INDEX. 


THE  REPEBENCES  ARE  TO  THE  8EPTI0NS. 

Section 
ACGEPTANCE- 

wlien  notice  of,  of  guaranty  necessary  to  charge  guarantor 157  to  1£2 

writer  of  general  letter  of  credit  not  bound  unless  notified  of. . .  158 

notice  of,  necessary  to  charge  writer  of  guaranty  addressed  to 

paiticular  person 159 

notice  of,  not  necessary  to  charge  guarantor  of  definite  liability,  164 

when  guarantor  not  entitled  to  notice  of 165 

ACCEPTOR— 

of  bill  of  exchange  for  accommodation,  what  is  his  Uability. . . .  156 

ACCIDENT— 

equity  will  reform  instrument  against  surety  when  by,  it  does  not 
express  intention 118 

ACCOUNT— 

how  far,  rendered  by  public  officer  is  evidence  against  his  surety  522 

negligence  of  state  or  corporation  in  compelling  officer  to  account, 
no  defense  to  surety  on  ofiicial  bond 474 

ACCOUNT  STATED— 

verbal  guaranty  sufficient  to  support  verbal 65 

ACCOMMODATION  PARTIES— 

liability  of,  on  negotiable  instruments 147  to  156 

to  negotiable  instruments,  when  they  are  co-sureties 225 

ACT— 

negligence  of  creditor  is  considered  his 387,  388 

ACT  OF  CREDITOR— 

which  wiU  discharge  surety  must  be  unlawful 200 

although  it  mislead  surety,  will  not  discharge  him,  when 212 

in  advising  surety  to  carry  property  out  of  state  does  not  dis- 
charge surety,  when 215 

which  prevents  performance  by  principal  discharges  surety 216 

if  by,  lien  on  property  of  principal  for  payment  of  the  debt  is 

lost  or  rendered  unavailing,  surety  discharged  pro  tanto 370  to  372 

when  surety  wholly  discharged  by,  in  relinquishing  security  for 

the  debt 373 

in  relinquishing  property  of  principal  where  creditor  has  no  lieu 

thereon  does  not  discharge  surety 374 

(677) 


678  INDEX. 

Section 
ACT  OF  CnEDlTOR— Continued. 

in  relinquishing  lien  on  property  of  piincipal  does  not  discharge 

surety,  when 375 

ACT  OF  GOD— 

when  sickness  or  death  of  principal  excuses  bail 428 

ACT  OF  LAW— 

surety  not  discharged  if  principal  released  by 126 

surety  in  replevin  bond  not  liable  when  return  of  property  ren- 
dered impossible  by 419 

which  will  discharge  bail  must  be,  of  state  in  wliicli  obligation 
is  given 431 

ACTION— 

when  surety  liable  to,  before  any  steps  are  taken  agamst  prin- 
cipal   82 

what  steps  must  be  taken  against  principal  before  guarantor  of 
collection  liable  to 83 

when  necessary  against  principal  before  guarantor  can  be  sued...  84 

can  be  sustained  by  creditor  not  named  in  obligation  against 

surety  to  one  debtor  that  another  debtor  shall  pay  debt 115 

when  joint,  may  be  sustained  against  principal  and  surety 115 

when  cause  of,  accrues  to  surety  against  principal  for  indemnity  176 

surety  may  pay  by  instalments  and  sue  principal  for  each,  pay- 
ment   177 

of  assumpsit  lies  against  principal  in  favor  of  surety  wbo  pays 
debt  in  any  way ' 178 

when  joint,  can  and  when  it  cannot  be  maintained  by  joint  sure- 
ties for  indemnity 179 

surety  who  pays  may  sue  principal  for  indemnity  without  demand 
or  notice 180 

may  De  brought  by  creditor  against  surety  before  exhausting 
other  securities  for  debt 204 

equity  wiU  at  suit  of  surety  compel  creditor  to  bring,  against 
principal 206 

whether  surety  can  by  request  alone  compel  creditor  to  bring, 
against  principal 206  to  208 

surety  may  defend,  against  principal 216 

bail  may  defend,  against  principal 436 

when,  for  contribution  can  be  brought  by  surety  holding  indem- 
nity   238 

either  at  law  or  in  equity  may  be  maintained  by  surety  for  con- 
tribution    253 

when,  for  contribution  should  be  joint  and  when  several 255 

when  two  sureties  who  have  paid  debt  may  join  in,  for  subroga- 
tion  ..• 280 

dismissal  of,  commenced  by  creditor  against  principal  does  not 

discharge  surety 381 

when  surety  discharged  by  negligence  of  creditor  in  prosecuting, 

against  principal 388 


rNT)Ex.  679 

Section 
ACTION— Co«im»e(7. 

when  judgment  may  be  rendered  against  sureties  in  appeal  bond 

without 898 

against  surety  on  sheriff 's  oflScial  bond 488 

against  surety  on  guardian's  official  bond 491 

what  notice  to  bring,  sufficient  under  statute 604 

to  whom  statutory  notice  to  bring,  must  be  given 505 

against  whom,  should  be  brought  when  statutory  notice  to  sue 

is  given 506 

as  to  diligence  to  be  used  in  prosecuting,  when  statutory  notice 

to  sue  is  given 507 

waiver  of  written  statutory  notice  to  bring 508 

how  fact  that  surety  is  indemnified  affects  statutory  right  to  re- 
quire creditor  to  bring 509 

how  death  of  principal  affects  right  of  sm-ety  to  give  statutory 

notice  to  biing 510 

AD  DAMNIBI— 

when  surety  in  appeal  bond  discharged  if,  increased 397 

when  bail  in  civil  suit  discharged  by  increase  of. 435 

ADMINISTRATOR— 

whether  joint  administrators  are  sureties  for  each  other 25,  490 

subrogation  of  sureties  of 278 

whether  surety  in  official  bond  of,  liable  till  devastavit  estab- 
lished by  suit  against  principal 494,  495 

when  surety  in  official  bond  of,  concluded  by  settlement  by  or 

judgment  against  principal 496,  532 

liability  of  sureties  in  first  and  second  official  bonds  of 497 

liability  and  rights  of  surety  in  official  bond  of  two  administra- 
tors when  one  dies  or  ceases  to  act 498 

surety  in  official  Vond  of,  not  hable  for  rents  nor  for  proceeds  of 

sale  of  real  estate .*. • 499 

surety  in  official  bond  of,  only  liable  for  his  official  misconduct. .  500 

miscellaneous  cases  as  to  liability  of  surety  in  official  bond  of . . . .      501,  502 

ADMISSIONS— 

when,  of  principal  not  evidence  against  surety 518 

of  principal  evidence  against  surety  in  joint  suit  ayainst  them. .  519 

instances  of,   of  principal  as    evidence   against  surety 520 

where,  of  principal  are  part  of  res  gestae  they  are    evidence 

against  surety 521 

ADVANCE— 

payment  of  interest  in,  by  principal  debtor  dischai'ges  surety, 
when    305 

ADVANCES— 

made  by  obligee  to  contractor  faster  than  due,  dischajges  surety 

for  contractor 102 

when  surety  Hable,  although,  exceed  amount  mentioned  in  guar- 
anty   106 


680  INDEX. 

Section 
ADVANCES- 6'o»^/;!»«7. 

when  guarantoi-  must  be  notified  of,  made  under  guaranty 163 

when  guarantor  not  entitled  to  notice  of,  made  to  principal 16G 

when  surety  discharged  if  creditor  make,  to  principal  of  greater 
or  less  amount  than  that  for  which  surety  liable 337 

ADVERTISING— 

surety  of  sheriif  not  liable  for  costs  of, 454 

surety  of  tax  collector  not  liable  for  costs  of,  property  for  taxes. .  454 

AGENT— 

to  sign  the  name  of  another  as  surety  must  pursue  his  authority 

strictly. 10 

general,  cannot  usually  bind  principal  as  surety  for  another 10 

for  sale  of  property,  when  liable  as  implied  guarantor  of  paper 

he  has  taken, 16 

to  sign  writing  required  by  statute  of  frauds 76 

bail  may  depute,  to  aiTest  principal 427 

officer  of  goveniment  or  corporation  its  agent  only 474 

ALIMONY— 

.  surety  for,  cannot  be  compelled  to  pay  it  by  motion 116 

surety  for,  discharged  if,  changed  by  the  court 346 

ALLEGATION— 

general,  of  notice  is  sufficient  in  pleading 174 

ALTERATION- 

credit  on  back  of  note  of  amount  in  excess  of  value  of  property 

purchased  is  not  which  discharges  the  surety 94 

of  the  contract  discharges  the  sm-ety 330 

writing  unauthorized  agreement  over  blank  indorsement  is  not 

which  vitiates  true  agreement 154 

effect  of  material,  of  note  is  to  wholly  destroy  it 33 

changing  date  of  note  or  adding  interest  is,  which  discharges 

surety 331 

how,  of  note  by  addition  of  new  party  affects  surety  and  principal  332 

of  note  which  will  and  will  not  discharge  surety;  instances 333 

surety  not  discharged  if  after  alteration  of  contract  is  made  he 

ratify  it 334 

of  bond  as  affecting  liability  of  surety  thereon 335,  336 

of  contract  cannot  be  made  by  city  except  through  its  corporate 

authorities  by  ordinance 336 

when  additional  surety  signing  bond  is  not  such,  as  will  dis- 
charge original  surety 336 

when  advance  by  creditor  to  principal  of  greater  or  less  amount 

than  that  for  which  surety  is  liable  is,  wliich  discharges  surety  337 

in  penalty  of  bail  bond  discharges  bail,  when 438 

of  contract  discharges  surety  even  though  it  is  for  his  benefit. . .  338 

of  contract  discharges  surety  on  lease 339 

when,  in  compensation  of  principal  discharges  surety 341 

of  duties  of  principal  discharges  sureties  for  his  conduct 342 


INDEX.  681 

Section 
ALTEnATlOl^—Contmued. 

of  the  responsibility  of  the  principal  discharges  the  surety 343 

miscellaneous  cases  of  discharge  of  surety  by,  of  his  responsi- 
bility. . , .' 344,  345 

any  dealing  between  creditor  and  principal  which  amounts  to  a 
departure  from  the  contract  is  an,  which  discharges  surety 345 

when,  of  part  of  contract  does  not  release  surety  from  remainder  346 

miscellaneous  cases  concerning  discharge  of  surety  by,  of  con- 
tract   347 

in  mode  of  appointment  or  tenure  of  office  affects  suret}'  in  offi- 
cial bond,  how 471 

in  emoluments  of  office  affects  liability  of  surety  in  official  "bond, 
how 472 

AMBIGUITY— 

when  there  is,  as  to  consideration  it  may  be  explained  by  parol 

evidence 72 

in  guaranty  may  be  explained  by  parol  to  show  whether  it  is 

continuing  or  not 130 

AMENDMENT— 

surety  cannot  prevent,  of  judgment  against  principal 109  n 

of  proceedings  by  changing  christian  name  of  i^laintiff  discharges 

surety  in   appeal  bond,  when 397 

how  bail  in  civil  case  affected  by,  of  declaration 435 

ANTE-DATED - 

guaranty  may  be,  so  as  to  cover  past  transaction 107 

ANNUAL  OFFICER— 

surety  on  general  bond  of,  only  liable  for  one  year 139  to  141 

when  surety  on  bond  of,  liable  for  more  than  a  year 144 

APPEAL  BOND— 

liability  of  surety  in 393  to  404 

when  surety  in,  not  liable  if  judgment  not  rendered  by  court 

named 393 

when  surety  in,  not  liable  if  judgment  rendered  against  only  one 

of  two  principals 393 

when  surety  in,  not  discharged  if  name  of  one  plaintiff  stricken 

out 393 

when  surety  in,  discharged  if  name  of  plaintiff  changed 393 

which  set  of  sureties  bound  when  there  are  two  appeals  in  the 

same  case 394 

when  surety  in,  liable  to  former  surety  for  the  debt 395 

when  surety  in,  liable  for  costs 396 

when  surety  in,  not  liable  for  the  debt 396 

when  surety  in,  discharged  if  his  risk  increased 397 

when  judgment  against  sureties  in,  may  be  rendered  without  suit  398 

when  surety  in,  liable  to  suit  if  execution  against  principal  stayed  399 

liability  of  surety  in,  if  judgment  rendered  by  consent  of  principal  400 

when  surety  in,  Liable  for  final  judgment 401 


682  INDEX. 

Section 
APPEAL  BOND— ConfiHMfif?. 

bow  surety  in,  afiFected  by  deatb  of  principal 402 

surety  in,  only  liable  for  particular  judgment  appealed  from 403 

miscellaneous  cases  concerning  liability  of  sureties  in 403,  404 

not  necessary  in  order  to  cbarge  surety  in,  that  execution  should 

issue  against  piincipal 404 

how  surety  in,  affected  by  bankruptcy  of  principal 409 

APPEARANCE— 

when,  of  accused  does  not  excuse  bail  if  he  afterwai-ds  escape..  432 

APPLICATION  OF  PAYMENTS,  see  PAYMENT. 

APPLICATION  X)F  PAYMENTS— 

when  creditor  holding  several  claims  may  apply  payment  to  most 

doubtful 266 

how  payments  made  by  principal  should  be  applied 286 

how  the  law  will  apply  payments 287 

by  ofl3,cer  when  he  has  two  different  sets  of  sureties 294 

APPROVAL— 

where  statute  requires,  of  bond  surety  on  voluntaiy  bond  bound 

although  it  is  not  approved 12 

of  bail  bond  need  not  be  indorsed  thereon 436 

a  defect  in  the,  of  an  official  bond  is  no  defense  for  surety 442 

ARBITRATION— 

when  surety  in  replevin  bond  discharged  by  reference  of  replevin 
suit  to 416 

ARBITRATORS— 

when  surety  for  performance  of  award  need  not  be  notified  of 

sitting  of, 214 

ARMY— 

how  liability  of  bail  affected  by  enlistment  of  principal  in 430 

ARREST— 

right  of  bail  to  arrest  principal 427 

whether  bail  bound  when  principal  not  liable  to 434 

ASSIGNMENT— 

when,  of  debt  carries  with  it  guaranty  of  debt 34 

surety  on  assignees'  bond  not  liable  to  those  who  defeat  the. . . .  108 

ASSUMPSIT— 

surety  who  pays  in  any  manner  may  sue  principal  for  indem- 
nity in 178 

ATTORNEY— 

who  is  prohibited  by  statute  from  becoming  bail,  is  bound  if  he 

is  received  as  such 4 

court  will  sometimes  compel,  as  its  officer,  to  perform  verbal 

promise  which  is  within  the  statute  of  frauds 38 

as  to  power  of,  to  do  acts  which  will  discharge  surety 218  n 

what  authority,  has  with  reference  to  giving  time 323 


INDEX.  683 

Section 
ATTORNEY'S  FEES— 

surety  on  note  liable  for,  when  note  so  provides 92 

ATTACHMENT— 

surety  cannot  commence  suit  by,  against  principal  before  paying 

the  debt 176 

when  surety  subrogated  to  benefit  of,  levied  by  priacipal 264 

release  of,  on  property  of  principal  discharges  surety 381 

miscellaneous  cases  concerning  sureties  on  bonds  given  in,  pro- 
ceedings   410 

ATTACHMENT  BOND— 

when  demand  on  principal  necessary  to  charge  surety  in. .  .• 410 

surety  in  void,  not  liable  for  taking  property,  when ,  . . .  410 

ATTACHMENT,  BOND  TO  DISSOLVE— 

liability  of  surety  in,  when  defendants  changed  or  judgment  got 

against  only  part  of  defendants 407 

when  judgment  against  principal  conclusive  against  surety  in. .  408 

how  surety  in,  affected  by  bankruptcy  of  principal 409 

when  surety  in,  is  not  discharged  by  subsequent  an-est  of  princi- 
pal for  same  debt 410 

ATTESTATION— 

failure  by  officer  to  make  proper,  does  not  discharge  surety  on 

official  bond 442 

AUCTIONEER— 

is  the  agent  of  both  parties  to  make  the  agreement  required  by 

the  statute  of  frauds 76 

AUDIT— 

surety  on  bond  of  state  treasurer  liable  for  money  received  by 

him,  although  it  has  not  been  audited 447 

AUTHORITY— 

of  agent  to  sign  writing  required  by  the  statute  of  frauds 76 

cashier  of  bank  has  no,  to  release  surety  on  negotiable  instrument  218 

agreement  for  extension  must  be  made  by  person  having, 323 

as  to,  of  various  persons  who  make  false  representations  to  surety  360 

AWARD— 

surety  for  performance  of,  not  liable  if  arbitrators  changed 99 

extension  of  time  for  making,  discharges  surety  in  arbitration 
bond 312 


BAIL— 

when  promise  to  indemnify  one  if  he  will  become,  is  within  stat- 
ute of  frauds 46 

in  civil  suit  who  pay  debt,  rights  of  against  principal  and  sure- 
ties for  the  debt 242 

when  surety  entitled  to  subrogation  as  against  special,  of  prin- 
cipal   281 


684  INDEX. 

Section 
BAIL — Continued. 

liability  and  discharge  of,  in  civil  and  criminal  cases 425  to  441 

in  civil  cases  generally  entitled  to  rights  of  a  surety 425 

discharge  of,  by  surrender  of  principal 426 

may  arrest  principal  in  another  state  than  that  in  which  bail  is 

given ^^* 

right  of,  to  arrest  principal 427 

when  sickness  or  death  of  principal  excuses 428 

exoneration  of,  by  act  for  which  he  is  bomid  being  rendered  un- 
lawful   429 

how  liability  of,  afl'ected  by  enlistment  of  principal  in  the  army  430 
how  Hability  of,  affected  .by  subsequent  imprisonment  of  prin- 
cipal....!   431 

when  liable  if  accused  appear  and  afterwards  escape 432 

liability  and  discharge  of,  in  bastardy  bond 433 

how  liability  of  affected  by  term  of  court  not  being  held,  change 

of  venue,  etc 483 

whether  bound  when  principal  not  liable  to  arrest 4.34 

whether,  can  set  up  as  a  defense  the  duress  of  the  principal. . . .  434 
in  civil  case  only  bound  to  extent  required  by  law,  no  matter  what 

bond  contains 434 

not  liable  when  charge  stated  in  bail  bond  not  criminal  offense. .  434 
when,  in  a  civil  suit  cannot  inquire  into  sufficiency  of  affidavit  to 

hold  to, 434 

liability  of,  when  principal  indicted  for  another  offense 435 

how,  in  civil  case  affected  by  amendment  of  declaration 435 

whether  bound  when  sheriff  has  no  authority  to  take,  bond 435 

in  civil  case  discharged  by  change  of  form  of  action 435 

when  discharged  by  pardon  of  principal 436 

for  appearance  of  accused  before  circuit  court  where  there  is  no 

such  court  but  a  district  court  is  not  liable 436 

when  not  liable  if  judgment  against  principal  afterwards  re- 
versed   436 

may  defend  suit  against  principal 436 

in  civil  suit  against  two  not  liable  for  judgment  by  consent  en- 
tered against  one 436 

sheriff  cannot  return  ca.  sa.  before  return  day  so  as  to  charge . . .  437 
discharged  if  amount  indorsed  on  cap.  ad  resp.  does  not  corres- 
pond to  amount  sworn  to  be  due 437 

when  statute  provides  for  surrender  of  principal  within  ten  days 
after  judgment,  exonerated  by  surrender  of  principal  vvdthin 

ten  days  after  execution  issued 437 

in  civil  case  not  discharged  by  issuing  of  fi.  fa.  first  against 

principal 437 

creditor  must  honestly  try  to  collect  debt  from  all  the  principals 

before  coming  on 4-38 

changing  penalty  of  bail  bond  discharges,  when 438 

in  order  to  charge,  in  a  criminal  case,   record  must  show  that 

principal  was  called  and  did  not  appear 438 

when  liable  although  he  does  not  justify 439 


INDEX.  685 

Section 
BAIL — Continued. 

when  failure  to  indict  principal  does  not  discharge 439 

miscellaneous  cases  holding  bail  liable 439 

for  two  defendants  in  a  civil  suit  not  released  by  imprisonment 

on  ca.  sa.  of  one  of  them 440 

when,  for  one  defendant  not  discharged  by  discontinuance  of  suit 

against  another  defendant 440 

where  statute  requires  two  sureties  to  bail  bond  and  only  one 

signs,  he  is  bound 440 

in  a  criminal  case  entitled  to  indemnity 441 

indemnitor  of,  must  be  notified  that,  has  been  damnified  before 

he  can  be  sued 441 

BANK— 

may  guaranty  bonds  pledged  by  its  debtor  to  a  third  person, 

when 3 

whether  it  discharges  surety  by  failure  to  retain  debt  due  it  out 

of  deposit  of  principal 292,  376 

when  surety  of  cashier  discharged  if,  charter  extended  or  for- 
feited   344 

BANK  CASHIER— 

voluntary  bond  of,  variant  from  statutory  form  binds  surety. ...  13 

BANKRUPTCY— 

of  principal  will  not  delay  suit  against  surety 82 

discharge  of  principal  in,  does  not  release  surety 126 

of  principal,  how  it  affects  surety's  claim  for  indemnity 189 

equity  will  compel  creditor  to  prove  claim  against  estate  of  prin- 
cipal in 205 

when  discharge  of  surety  in,  does  not  release  him  from  contribu- 
tion    240 

surety  of  bankrupt  not  discharged  by  creditor  signing  bankrupt's 

certificate 374 

how  surety  on  bond  given  to   dissolve  attachment  and  on  forth- 
coming bond  afi'ected  by,  of  principal 409 

BASTARDY  BOND— 

liability  and  discharge  of  bail  in, 433 

BIDDER— 

surety  may  be,  at  execution  sale  of  principal's  property 195 

BILL  OF  DISCOVERY— 

when,  may  be  brought  against  principal  and  difierent  sets  of 
sureties  to  ascertain  time  of  defalcation 465 

BILL  OF  EXCHANGE— 

liability  of  accommodation  parties  to, 156 

accommodation  indorsers  of,  liable  to  each  other  in  order  of  be- 
coming parties 156 

BILL  QUIA  TIMET— 

surety  can  maintain  to  compel  principal  to  pay  debt  before  him- 
self paying  it "   - ^-^ 


686  INDEX. 

Section 
BLANK— 

where  surety's  name  sliould  be  in  body  of  bond  does  not  release 

him 15 

where  penalty  of  bond  is,  surety  not  bound 15 

in  bond  when  filled  after  death  of  surety  according  to  agreement 

binds  his  estate 108 

when  surety  on  bond  is  discharged  if,  in  it  is  filled 335,  336 

when  surety  who  signs  instrument  in,  bound  by  act  of  principal 

infilling 356 

BLANK  INDORSER— 

what  is  the  liability  assumed  by  the,  of  another's  obligation. . . .  147  to  152 

when  liable  and  when  not  liable  as  guarantor 147  to  149 

of  note  liable  as  indorser,  when 150 

of  note  liable  as  joint  maker,  when 151 

liability  of;  general  observations 152 

true  liability  of,  may  be  shown  by  parol  evidence 153 

BLANK  INDORSEMENT— 

writing  unauthorized  agreement  over,  does  not  vitiate  actual 
agreement 153 

BOND— 

see  APPEAL  BOND. 

see  ATTACHMENT  BOND. 

see  ATTACHMENT,  BOND  TO  DISSOLVE 

see  BASTARDY  BOND. 

see  DISTILLER'S  BOND. 

see  FORTHCOMING  BOND. 

see  GENERAL  BOND. 

see  INDEMNIFYING  BOND. 

see  INJUNCTION  BOND. 

see  OFFICIAL  BOND. 

see  REPLEVIN  BOND. 

see  STATUTORY  BOND. 

see  STAY  BOND. 

see  VOLUNTARY  BOND. 

guaranty  of,  not  negotiable 86 

where,  required  of  accused  and  two  given  each  in  half  amount  of 

one  required,  both  valid 106 

of  executor  in  which  deceased  is  named  James  instead  of  Joseph, 

does  not  bind  surety 112 

alteration  of,  as  affecting  liability  of  surety  thereon 335,  336 

when  surety  on,  liable  if  condition  that  another  shall  sign  is  not 

complied  with 355 

BURDEN  OF  PROOF— 

is  on  surety  to  show  that  creditor  knew  of  suretyship 20 

BY-LAWS— 

surety  of  employe  of  corporation  not  discharged  because,  of  cor- 
poration not  complied  with 369 


INDEX.  687 

Section 
CASHIER— 

of  bank  has  no  authority  to  release  surety  on  negotiable  instru- 
ment   218 

when  surety  of  bank,  discharged  if  bank  charter  extended  or 

forfeited 143,344 

how  far,  of  bank  its  agent  to  make  representations  to  surety. . . .  360 

liability  of  surety  on  official  bond  of  bank 479 

CAUSE  OF  ACTION— 

when,  accrues  to  surety  against  principal  for  indemnity 176 

CHANGE,  see  ALTERATION. 

CHARTER— 

surety  of  cashier  not  liable  for  his  acts  after  bank,  extended  or 
forfeited 143,344 

CHECK— 

when  taking  principal's,  for  extended  period  amounts  to  giving 
time 317 

CIRCUMSTANCES— 

limiting  liability  of  surety  on  general  obligation 142,  143 

when,  do  not  Hmit  general  words  of  obligation 145,  146 

CITY— 

cannot  guaranty  bonds  of  a  corporation  making  public  improve- 
ments within  its  limits,  when 3 

surety  of  agent  of,  liable  for  money  received  by  him  although 
illegally  received 104 

can  only  alter  contract  through  its  corporate  authorities  by  ordi- 
nance   ,  836 

CITY  TREASURER— 

subrogation  of  sureties  of 278 

CLAIM— 

when  surety  not  discharged  by  failure  of  creditor  to  present, 
against  estate  of  principal 392 

CLERK— 

liability  of  surety  on  official  bond  of  bank 479 

CLERK  OF  COURT— 

liability  of  surety  on  official  bond  of 453 

COLLATERAL- 

promise  must  be,  to  liability  of  principal  to  bring  it  within  the 

statute  of  frauds 41 

promise,  to  implied  liability  of  principal  is  within  statute  of 

frauds 43 

when  promise  is,  within  the  statute  of  frauds 63,  64 

COLLATERAL  SECURITY— 

rights  of  the  surety  with  reference  to,  as  against  the  creditor. . . .  214 

deposited  with  creditor  for  payment  of  the  debt  cannot  be  diverted 
from  that  purpose 291 


688  EST)EX. 

Section 
COLLATERAL  SECURITY— Coniinued. 

■when  taking,  for  extended  period  does  not  amount  to  giving 

time 319,  320 

if  creditor  negligently  lose,  for  the  debt  the  surety  is  discharged      384,  385 

COLLECTION— 

when  guarantor  of,  liable  to  suit 83 

COLLECTOR— 

•when  surety  of,  not  discharged  by  his  transfer  from  one  place  to 

another 144 

how  surety  of,  of  public  money  affected  by  giving  time 324 

COMMON  MONEY  COUNTS— 

no  recovery  can  be  had  against  surety  by  suit  on 116 

COMPENSATION— 

when  change  in,  of  principal  discharges  surety 341 

COMPOSITION— 

when  guaranty  given  pending  negotiations  for,  fraudulent 362 

concealment  of  material  facts  in  relation  to,  discharges  surety, 
when 366 

COMPTROLLER— 

of  state  not  its  agent  to  make  representations  to  surety  of  state 
otEcer 360 

CONCEALMENT— 

agreement  by  creditor  not  to  notify  surety  ol  non-payment  of 

note  affects  surety,  how 214 

of  fact  that  transaction  is  usurious  affects  surety,  how 368 

of  material  facts  in  order  to  discharge  surety  must  be  fraudulent  365 
when  surety  discharged  by,  of  material  facts  affecting  his  lia- 
bility ... . 365,366 

of  fact  that  principal  is  a  defaulter  discharges  surety,  when 3G7 

negligence  of  master  in  discovering  servant's  default  is  not  such, 

as  will  discharge  his  surety 367 

whether  continuing  a  sei-vant    in   employment,  after  his  dis- 
honesty is  discoverd,  discharges  his  surety 368 

failure  of  creditor  to  notify  surety  of  principal's  default,  is  not 
such,  as  discharges  surety 363 

CONCLUSIVE— 

when  decree  against  assignee  for  benefit  of  creditors  is,  on  his 
sureties 108 

CONDITION— 

when  surety  discharged  if,  that  another  'shall  sign  is  not  com- 

I)lied  with 349 

when  surety  not  bound  if,  upon  which  he  signed  is  not  complied 

•ndth 350 

parol  evidence  is  competent  to  show,  upon  which  surety  signed  352 

surety  on  note  not  discharged  if  creditor  have  no  notice  of,  on 

which  he  signed 354 


rNDEX.  689 

Section 
CONDITION— Con^MuecZ. 

when  surety  on  bond  liable  if,  that  another  shall  sign  is  not  com- 
plied with ■        355 

when  name  of  surety  in  body  of  obligation  is  notice  of,  that  he 
should  sign 357 

miscellaneous  cases  holding  surety  discharged  by  non-compliance 
with,  upon  which  he  signed 361 

CONDITIONAL  AGREEMENT— 

for  giving  time  discharges  surety,  when 323 

CONSENT— 

if  surety,  to  giving  time  he  cannot  take  advantage  of  extension 

when 299 

by  one  of  two  sureties  to  giving  time 299 

liability  of  surety  in  appeal  bond  if  judgment  afterwards  ren- 
dered by,  of  principal 400 

CONSTRUCTION— 

of  contract  of  surety  or  guarantor 78,  80 

parties  to  contract  may  give  practical,  to  it. .  - 80 

of  guaranty  with  reference  to  ascertaining  whether  it  is  continu- 
ing or  not 130 

it  is  a  rule  of,  that  general  words  in  an  obligation  will  be  limited 

by  the  recitals 138 

of  statutes  affording  summary  remerlies  in  case  of  sureti.s 515 

CONSTITUTIONAL- 
SI  atute  prohibiting  attorney  from  becoming  bail  is 4 

statutes  providing  summary  remedies  in  case  of  sureties  are 514 

CONSEQUENTIAL  DAMAGES— 

principal  not  liable  to  surety  for, 183 

CONSTABLE— 

if  creditor  decline  to  receive  money  collected  by,  his  sureties  are 
not  liable  therefor 457 

liability  of  surety  on  official  bond  of,  for  his  act  in  seizing  prop- 
erty   484 

surety  in  official  bond  of,  liable  only  for  his  acts  within  the  scope 
of  his  authority  or  duty ^  483 

sickness  of,  which  prevents  him  from  levying  an  execution  is  no 
excuse  for  the  sux-eties  on  his  official  bond 487 

if  creditor  permit,  to  use  money  collected  on  agreement  to  pay 
interest,  surety  on  official  bond  of,  not  liable  therefor 487 

miscellaneous  cases  as  to  liability  of  surety  on  official  bond  of. . .  487 

CONSIDERATION,  see  FAILURE  OF  CONSIDERATION. 

there  must  be  a,  to  support  contract  of  surety 6 

value  of,  immaterial 6 

instances  of  sufficiency  of 6 

executory,  to  principal  sufficient,  when 7 

moving  from  creditor  to  principal  sufficient,  when 7 

44 


690  INDEX. 

Sectiow 
CONSIDERATION— Con^wweo. 

forbearance  towards  creditor  without  an  apfreement  therefor  not 

sufficient 8 

agreement  by  creditor  to  forbear  towards  principal  a  definite  time 

is  sufficient 8 

executed,  to  principal  not  sufficient 9 

what  rules  govern  when,  moves  between  creditor  and  surety  ....  9 

any  trouble,  detriment  or  inconvenience  to  creditor  sufficient. ...  9 

when  two  makers  of  note  each  receive  one  half  of,  each  is  surety 

of  the  other  for  one  half 25 

surety  not  estopped  to  show  that,  is  different  from  that  stated  in 

his    obligation '        30 

whether,  must  appear  from  the  writing  to  satisfy  the  statute  of 

frauds 68,  69 

when,  sufficiently    appears    from  writing  to  satisfy  statute  of 

frauds 70 

when,  does  not  sufficiently  appear  from  writing  to  satisfy  stat- 
ute of  frauds 71 

when  writing  ambiguous  as  to,  it  may  be  explained  by  parol 

evidence 72 

when  several  papers  may  be  read  together  to  express 73 

whether  guaranty  of  note  must  express 74 

no  matter  how  small  the,  surety  liable  for  whole  debt 81 

when  agreement  of  surety  to  remain  bound  sufficient,  for  agree- 
ment to  indemnify 213 

payment  of  interest  in  advance  sufficient,  to  support  contract  for 

extension 305 

when  payment  of  part  of  debt  sufficient,  for  giving  time 306 

whether  agreement  to  pay  interest  for  a  definite  time  is  sufficient, 

for  extension o07 

special  instances  of  sufficient  and  insufficient,  for  giving  time. . .  308 

agreement  to  pay  usury  not  sufficient,  for  giving  time 309 

whether  payment  of  usury  is  sufficient,  for  giving  time 309,  310 

when  failure  of,  to  principal  is  a  defense  for  surety 359 

CONTEMPT— 

surety  of  party  attached  for,  discharged  if  proceedings  against 
principal  discontinued,  although  they  are  afterwards  revived  424 

CONTINUOUS  HOLDING— 

when  surety  on  general  bond  of  officer  only  liable  for, 143 

CONTINUING  GUARANTY— 

no  general  rule  for  determining  whether  guaranty  is  continuing 

ori.ot 130 

if   guaranty  ambiguous,    parol  evidence    admissible   to    show 

whether  it  is  continuing  or  not 130 

what  is;  instances 131,  132 

what  is  not;  instances 135  to  137 

CONTINUANCE— 

by  creditor  of  case  against  principal  amounts  to  giving  time. . . .  322 


INDEX.  691 

Section 
CONTRIBUTION— 

right  to,  subsist  between  co-sureties,  reasons  therefor 220 

co-sureties  bound  by  different  instruments  liable  to 221,  222 

it  makes  no  difference  with  right  to,  that  one  surety  did  not 

know  that  the  other  was  surety 223 

when  right  to,  does  not  subsist  between  sureties  for  the  same 

debt 224 

surety  who  becomes  bound  during  course  of  remedy  against  prin- 
cipal cannot  recover,  from  original  surety 227 

cannot  be  recovered  when  it  would  be  inequitable 228 

whether  surety  who  becomes  bound  solely  at  request  of  another 

surety  liable  to 229 

surety  of  surety  not  liable  to, 230 

when  owner  of  goods  who  signs  importer's  bond  as  surety  can 

recover,  from  other  surety  in  the  bond 231 

cannot  be  recovered  when  principal  or  other  surety  was  not  liable 

for  debt  paid 232 

surety  who  surrenders  indemnity  discharges  co-surety  from 235 

if  surety  negligently  lose  indemnity  he  discharges  co-surety  from,  236 

when  action  for,  may  be  brought  by  surety  holding  indemnity. .  238 
surety  may,  before  paying  debt,  file  bill  to  compel  co-surety  to 

contribute  to  its  payment 239 

when  discharge  of  sarety  in  bankruptcy  does  not  release  him  from,  240 
when  surety  who  is  discharged  from  liability  to  creditor  liable  to, 

at  suit  of  surety  who  subsequently  pays 241 

as  to  right  to,  of  bail  in  civil  suit  who  pays  debt 242 

surety  who  pays  judgment  may  afterwards  have  execution  there-  243 

on  to  enforce,  from  co-surety 243 

how  right  to,  affected  by  giving  of  time 244 

as  affected  by  release  of  principal  or  co-surety 245 

right  to,  not  barred  by  agreement  of  one  surety  to  pay  whole 

debt  if  consideration  for  agreement  fails 245 

how  right  to,  affected  by  failure  of  consideration  of  note 246 

when  surety  can  recover,  for  costs , 247 

estate  of  deceased  co-surety  liable  for, 248 

surety  who  pays  by  his  own  note  may  recover, 249 

what,  surety  who  pays  in  land  is  entitled  to  recover 250 

whether  surety  who  has  paid  less  than  his  share  of  the  debt  can 

recover 251 

in  what  proportions  co-sureties  are  liable  to, 252 

may  be  recovered  by  surety  either  at  law  or  in  equity 253 

whether  surety  must  show  insolvency  of  principal  in  order  to 

recover, 254 

when  suit  for,  should  be  joint  and  when  several 255 

who  necessary  parties  to  bill  for, 256 

surety  may  bring  action  for,  against  co-surety  without  demand 

or  notice 257 

right  to,  not  barred  by  surety  pa}dng  debt  without  compulsion. .  257 

when  liability  to,  attaches 258 

when  claim  for,  barred  by  the  statute  of  limitations 259 


692  INDEX. 

Section 
CONTRIBUTION— ConfiMwet;. 

when  surety  in  forthcominf?'  bond  for  property  of  principal  can- 
not recover,  from  other  sureties 406 

how  far  judgment  against  one  surety  evidence  for  him  in  suit 
for,  against  co-surety 529 

CONTRACT— 

of  suretyship  or  guaranty,  what  are  its  requisites 2 

of  suretyship  or  guaranty  by  infant  voidable,  may  be  ratified. . .  3 

of  surety  or  guarantor,  construction  of 78,  80 

parties  to,  may  give  practical  construction  to, 80 

there  is  no,  between  the  surety  on  a  note  and  a  person  not  the 

payee  who  discounts  it 95 

there  is,  between  the  writer  of  a  general  letter  of  credit  and  every 

one  acting  on  it 96 

generally  there  is  no,  except  between  guarantor  and  party  to 

whom  guaranty  is  addressed 97 

when  not  entire  and  surety  liable  if  part  of  goods  furnished 103 

to  indemnify  against  liabihties  is  broken  by  judgment  against 

party  indemnified 106 

an  offer  to  guaranty  does  not  amount  to,  until  accepted  and  guar- 
antor notified  of  acceptance 158 

when  there  is,  between  guarantor  and  creditor 167 

CORPORATION— 

stockholders  of,  liable  for  its  debts  are  not  its  sureties 26 

promise  by  stockholder  in,  to  pay  its  debts  is  within  the  statute 

of  frauds 54 

vote  of,  entered  on  books  suflBcient  memorandum  to  satisfy  stat- 
ute of  frauds 66 

bond  to,  good  if  taken  in  the  names  of  the  individual  members 
as  obligees 101 

surety  of  employe  of,  not  discharged  because  by-laws  of,  not  com- 
plied with 369 

surety  on  oSicial  bond  of  one  officer  of,  not  discharged  by  negh- 
gence  or  unauthorized  act  of  another  officer  of, 474  to  476 

COSTS— 

when  surety  liable  for,  of  suit  against  principal 106 

when  surety  can  recover  from  principal,  which  he  has  paid. . . .  187 

when  surety  can  recover  contribution  for, 247 

when  surety  in  appeal  bond  not  liable  for, 396 

surety  in  bond  for,  not  discharged  because  case  is  transferred 

from  one  court  to  another 418 

liability  of  surety  for,  of  prosecution  of  suit 422 

CO-SURETIES— 

right  to  contribution  subsists  between,  reasons  therefor 220 

bound  by  different  instruments  liable  to  contribution 221,  222 

when  accommodation  parties  to  negotiable  instruments  are, 225 

indorser  of  note  is  not,  with  surety  who  signs  note  as  maker. . . .  225 


INDEX.  693 

Section 
CO-SURETIES— Coji^mMed. 

several  parties  to  negotiable  instruments  may  be  shown  by  parol 

to  be 226 

surety  who  becomes  bound  during-  course  of  remedy  against 

principal  not  with  original  surety 227 

surety  who  becomes  principal  liable  for  whole  amount  paid  by 

former 231 

when  joint  purchasers  of  land  are, 231 

when  surety  entitled  to  benefit  of  indemnity  obtained  by, 233  to  237 

surety  cannot  recover  at  law  against,  on  sheriff's  bond 245  n 

surety  who  pays  entitled  to  subrogation  as  against, 269 

whether  and  how  far  surety  discharged  by  release  of, 383 

COUNTY  TREASURER— 

subrogation  of  sureties  of, 278 

COURT- 

surety  not  estopped  to  deny  the  existence  of,  because  instrument 

recites  that  there  is  such, 32 

will  sometimes  compel  attorney  as  its  officer  to  perform  verbal 

promise  which  is  within  the  statute  of  frauds 38 

CREDIT— 

false  representation  of  another's,  not  within  the  statute  of  frauds  59 
if  any,  given  to  a  third  party  promise  within  the  statute  of  frauds        62,  63 
on  back  of  note  of  amount  in  excess  of  value  of  property  pur- 
chased is  not  an  alteration  which  discharges  the  surety 94 

if  different,  given  than  that  stipulated  for  guarantor  not  liable  103 

surety  liable  although,  exceed  amount  mentioned  in  guaranty, 

when 106 

principal  not  liable  to  surety  for  the  use  of  his,  in  the  absence  of 

express  agreement 183 

surety  not  liable  if  shorter,  than  stipulated  for  is  given 345  n 

CREDITOR— 

has  no  cause  of  action  against  his  own  surety 109 

equity  will  at  suit  of  surety  compel,  to  proceed  against  principal  205 

whether  surety  can  by  request  alone  compel,  to  sue  principal 206  to  208 

after  he  is  paid  cannot  interfere  to  prevent  subrogation 263 

cannot  avail  himself  of  personal  indemnity  given  surety  unless 

surety  could  have  done  so 284 

when  entitled  to  securities  given  by  principal  to  surety  for  his 

indemnity 282  to  285 

when  obliged  to  retain  money  in  his  hands  belonging  to  principal  292 
instances  of  discharge  of  surety  by  neglect  of,  to  preserve  or  per- 
fect securities 387 

CREDITOR'S  BILL— 

surety  who  pays  judgment  may  prosecute,   filed    by  creditor 

against  principal 239 

CUSTOM— 

when  surety  wUl  be  presumed  to  know,  of  bank 2S9 


694  INDEX. 

Section 
DAMAGES,  see  MEASURE  OF  DAMAGES, 

when  surety  for  debt  is  also  liable  for, 92 

"vvlaen  passage  of  statute  authorizing,  aitcr  surety  in  appeal  bond 

signs  does  not  discharge  him 397 

when  surety  in  appeal  bond  is  not  liable  for,  assessed  on  dismiss- 
ing appeal 404  n 

when  surety  in  injunction  bond  not  liable  for,  upon  affirmance 
of  decree 412 

DATE— 

when  guaranty  on  note  is  without,  jury  may  infer  it  was  made 

at  same  time  as  note 7 

changing,  of  note  is  alteration  which  discharges  surety 331 

DAYS  OF  GRACE— 

on  note  running  three  months  where  three  months'  credit  stipu- 
lated for  does  not  discharge  surety 103 

which  extend  the  time  discharge  the  surety 317 

DEATH— 

blank  in  bond  filled  after,  of  surety  binds  his  estate,  when 108 

when  guaranty  which  is  not  to  be  produced  till  after,  of  parties 

is  valid  if  produced  before •  109  n 

of  slave  caused  by  principal  does  not  release  surety  for  return  of 

slave Ill 

when,  of  guarantor  revokes  guaranty 113,  114 

land  mortgaged  by  wife  for  husband's  debt  remains  liable  after  her  113 
of   surety  in    joint  obligation  releases  his  estate  at  law  and 

equity  will  not  chai'ge  it 117 

of  principal  which  renders  remedy  at  law  against  surety  impos- 
sible will  not  bar  relief  against  him  in  equity 118 

after,  of  sheriff  equity  is  the  proper  tribunal  to  afford  relief  to 

the  sureties  in  his  joint  official  bond 198 

of  surety  does  not  release  his  estate  from  contribution 248 

of  the  king  dischargees  surety  for  the  peace 345  n 

surety  for  firm  not  liable  for  its  acts  after,  of  one  partner 345  71 

how  surety  in  appeal  bond  affected  by,  of  principal 402 

of  slave  exonerates  surety  in  forthcoming  bond  for  his  production  405 

of  plaintiff  aft'ects  liabiHty  of  surety  for  costs,  how 422 

of  creditor  does  not  prejudice  right  of  bail  m  a  civil  suit  to  arrest 

principal 427 

when,  of  principal  excuses  bail 428 

of  justice  of  the  peace  afiects  sureties  in  his  official  bond,  how. . .  482 
when  surety  on  sheriff 's  official  bond  liable  for  acts  of  under 

sheriff  after  sheriff 's, 487  n 

of  one  of  two  executors  affects  surety  in  their  oflBcial  bond,  how  "  498 

of  principal  affects  right  of  surety  under  statute,  how 510 

when  entries  made  by  principal  are  after  his,  evidence  against  his 

sureties 523 

DEBT— 

when  guaranty  of,  passes  to  assignee  of 34 


INDEX.  695 

Section 
DECEASED  PRINCIPAL— 

surety  -not  discharged  by  failure  of  creditor  to  present  claim 

against  esiate  of, 392 

DECLARATION— 

not  necessary  to  state  in,  that  promise  is  in  writing 77 

unnecessary  allegation  of  notice  in,  may  be  treated  as  surplusage  174 

DECLARATIONS— 

when,  of  principal  not  evidence  against  surety 518 

of  principal  evidence  against  surety  in  joint  suit  against  them. .  519 

instances  of  admissibility  of  principal's  as  evidence  against  surety  520 
when,  of  principal  are  part  of  res  ^festoe  they  are  evidence  against 

surety 521 

DECREE— 

against  principal  alone  conclusive  against  surety,  when 91 

when  it  concludes  surety  of  assignee  for  benefit  of  creditors 108 

when,  against  principal  conclusive  against  surety  on  injunction 
bond 534 

DEDUCTION— 

made  from  price  of  goods  does  not  discharge  guarantor  of  payment  103 

DE  FACTO  OFFICER— 

surety  of,  liable  for  his  acts 445 

DEFAULT— 

when  surety  or  guarantor  is  in, 82 

when  guarantor  of  collection  is  in, 83 

when  guarantor  entitled  to  notice  of,  of  principal 168,  169 

when  guarantor  not  entitled  to  notice  of,  of  principal 170,  171 

DEFAULTER— 

concealment  of  fact  that  principal  is,  discharges  surety,  when. . .  367 

DEFENSE— 

what,  surety  is  bound  to  make  to  suit  against  him  as  affecting 

his  right  to  indemnity •. 184 

surety  may  make  the  same,  at  law  as  in  equity 209 

whether  surety  must  make,  at  law  when  sued  at  law 209 

whether  surety  having  failed  to  make,  at  law  can  have  relief  in 

equity 210 

surety  has  a  right  to  make,  to  suit  against  principal 216 

DEFINITE  LIABILITY— 

when  guarantor  of,  not  entitled  to  notice  of  acceptance 164 

DEFINITE  PERIOD— 

what  is,  with  reference  to  discharge  of  surety  by  giving  time . . .  298 

DEL  CREDERE  AGENT— 

promise  of,  not  within  the  statute  of  frauds 57 

DELIVERY— 

contract  of  surety  takes  effect  from  time  of, 14 

of  contract  of  surety  necessary  to  its  validity 14 


696  INDEX 

Section 
DEMAND— 

when  surety  in  default  no,  on  bim  or  principal  necessary  before 

bring-ing  suit 82 

when,  of  payment  on  principal  necessary  to  charge  guarantor  . . .  1G9 

when,  of  payment  on  principal  not  necessary  to  charge  guarantor  170 
on  principal  not  necessary  to  charge  party  who  guaranties  note 

by  separate  instrument 172 

no,  on  insolvent  principal  necessary  to  charge  guarantor 173 

surety  who  pays  may  sue  principal  for  indemnity  without  any,  . .  180 

surety  may  sue  co-surety  for  contribution  without  a  previous, . . .  257 

when,  on  principal  in  attachment  bond  necessary  to  charge  surety  410 

DEPARTURE— 

any  dealing  by  creditor  with  principal  which  amounts  to,  from 
the  contract  discharges  the  sm'ety 345 

DEPOSIT— 

whether  bank  discharges  surety  if  it  fails  to  retain  debt  due  it 
out  of  principal's, 376 

DEPRECIATED  CURRENCY- 

payment  by  surety  in,  only  entitles  him  to  recover  from  principal 
its  value •  182 

DEPUTY  SHERIFF— 

surety  on  sheriff's  official  bond  liable  for  acts  of, 487 

when,  collects  money  which  he  fails  to  pay  over  remedy  of  party 

injured  is  against  sureties  on  sheritfs  official  bond 487 

liability  of  surety  on  official  bond  of, 489 

DEVASTAVIT— 

whether  surety  in  official  bond  of  executor  or  administrator  lia- 
ble till,  established  by  suit  against  piincipal 494,  495 

DILIGENCE,  see  DUE  DILIGENCE. 

when  creditor  bound  to  exercise,  in  preserving  securities  for  the 

debt 384  to  392 

what,  necessary  in  prosecuting  suit  when  statutory  notice  to  sue 

is  given 507 

DISCHARGE  OF  SURETY— 

in  the  court  below  cannot  be  alleged  by  the  principal  as  error. . .  108 
surety  not  discharged  by  release  of  principal  if  remedies  against 

surety  reserved 123 

indemnified  surety  not  discharged  by  release  of  principal 123 

when  surety  not  discharged  because  principal  not  bound 124 

whatever  discharges  principal  usually  i-eleases  surety 121  to  124 

when  surety  discharged  after  judgment  by  release  of  principal...  125 

surety  not  discharged  if  principal  released  by  act  of  law 126 

does  not  release  principal 129 

act  of  creditor  which  will  discharge  surety  must  be  unlawful 200 

whether  surety  discharged  if  creditor  fail  to  sue  principal  on 

request 206  to  208 


INDEX.  697 

Section 
DISCHARGE  OF  SURETY— Continued. 

if  creditor  lead  surety  to  believe  debt  is  paid,  and  he  is  injured, 

he  is  discharged 211 

surety  discharged  if  creditor  render  his  right  to  subrogation  una- 
vailing   261 

by  payment 286  to  295 

whether  surety  discharged  if  creditor  fail  to  retain  money  in  his 

hands  belonging  to  principal 292 

by  tender  of  amount  of  debt  by  principal  to  creditor 29-5 

by  the  giving  of  time 296  to  329 

the  surety  is  discharged  by  alteration  of  the  contract 330  to  347 

when  surety  discharged  if  creditor  advance  to  principal  greater 

or  less  amount  than  that  for  which  surety,  liable 837 

when  surety  not  discharged  if  compensation  of  principal  changed  341 

surety  for  conduct  of  principal  discharged  if  his  duties  changed  342 

when  surety  discharged  if  responsibility  of  principal  varied 343 

any  dealing  by  the  creditor  with  the  principal  which  amounts  to 

a  depru'ture  from  the  contract  discharges  the  surety 345 

by  misrepresentation,  concealment,  fraud,  and  non-compliance 

with  the  terms  upon  which  he  became  bound 848  to  369 

when  surety  of  employe  of  corporation  not  discharged  because 

by-laws  of  corporation  not  complied  with 869 

by  creditor  relinquishing  security  for  the  debt 370  to  383 

surety  not  discharged  by  creditor  releasing  property  of  principal 

on  which  he  has  no  lien 374 

whether  surety  discharged  if  bank  does  not  retain  debt  due  it 

out  of  deposit  of  principal 376 

when  surety  not  discharged  by  creditor  releasing  principal  from 

imprisonment 377 

when  surety  discharged  if  creditor  release  levy  on  property  of 

principal 378  to  380 

to  what  extent  surety  discharged  by  release  of  co-surety 383 

by  creditor  negligently  losing  security  for  the  debt 384  to  392 

by  neglect  of  creditor  to  record  mortgage  for  security  of  the 

debt 389 

cases  holding  surety  not  discharged  by  negUgence  of  creditor. . .      390,  391 

DISCLOSURE— 

what,  obligee  is  bound  to  make  to  surety 365,  366 

DISHONESTY— 

whether  continuing  servant  in  employment  after  his,  is  discov- 
ered discharges  surety 368 

DISMISSAIr- 

of  action  commenced  by  creditor  against  principal  does  not  dis- 
charge surety 331 

DIRECTORY— 

violation  of  statute  which  is,  in  receiving  surety  does  not  dis- 
charge him 4 

where  statute  is,  voluntary  bond  variant  from  it  may  bind  surety  13 


698 


INDEX. 


Section* 
DISTILLER'S  BOND— 

surety  in,  not  discharged  by  declaration  that  capacity  is  greater 
than  when  surety  became  bound 344 

does  not  bind  sureties  for  business  carried  on  at  place  other  than 
that  recited  in  the  bond 344 

DIVERSION— 

of  note  from  purpose  intended  discharges  surety,  when 95,  345 

DIVIDEND— 

guaranty  that  stock  shall  pay  a  certain,  is  not  a  wager 110 

when  surety  for  a  portion  of  a  debt  entitled  to  share  in,  of  estate 
of  insolvent  principal 219 

DOWER— 

wife  who  joins  her  husband  in  mortgage  of  his  land  for  his  debt 
not  as  to,  his  surety 22 

DUE  DILIGENCE— 

when  it  must  be  used  against  principal  before  guarantor  liable 

to  suit 84 

promise  by  guarantor  to  pay  debt  evidence  that,  has  been  used 

by  creditor 84 

guaran  or  may  waive  use  of,  by  creditor  against  principal 84 

what  amounts  to 85 

whether  a  question  of  law  or  fact 85,  384 

DURESS— 

of  surety  a  good  defense  for  him 5 

of  principal  when  a  good  defense  for  surety 5 

of  principal,  whether  a  defense  for  bail 434 

DUTIES— 

if  there  is  a  change  in,  of  principal  surety  for  his  conduct  dis- 
charged   342 

DWELLING  HOUSE— 

bail  in  civil  case  may  break  outer  door  of  to  arrest  principal. . . .  427 


ENLISTMENT— 

how  liability  of  bail  affected  by,  of  principal  in  the  army 430 

ENTRIES— 

how  far,  made  by  public  officer  are  evidence  against  his  surety. .  522 

when,  made  by  deceased  principal  evidence  against  surety 523 

EQUITY— 

will  not  charge  surety  where  he  is  not  Uable  at  law 117 

when,  will  set  up  lost  bond,  or  reform  bond  against  surety 118 

will  hold  sureties  who  cannot  be  charged  at  law  to  the  perform- 
ance of  the  clear  import  of  their  contract 118 

will  on  application  of  a  surety  compel  the  principal  to  pay  the 

debt 192 

when  surety  may  have  relief  in,  before  paying  the  debt 193 


INDEX.  699 

Section 
'EQUITY— Continued. 

will  at  suit  of  surety  compel  creditor  to  proceed  again&t  principal  205 

whether,  will  afford  surety  relief  who  has  failed  to  make  defense 

at  law 209,210 

when,  will  afford  relief  to  surety  a.gainst  co-surety  before  pay- 
ment of  the  debt 239 

will  enforce  surety's  right  to  subrogation 263 

ERROR— 

discharge  of  the  surety  in  the  court  below  cannot  be  alleged  by 

the  principal  as, 108 

ESCAPE— 

when  bail  liable  if  accused  appear  and  afterwards, 432 

ESTATE—  § 

surety  not    discharged  by  failure  of  creditor  to  present  claim  ^ 

against,   of  principal 392 

ESTOPPEL— 

surety  not  estopped  to  show  that  consideration  is  different  from 

that  stated  in  his  obligation .' 30 

surety  generally  estopped  to  deny  recitals  of  obligation  signed 

by  him 29,  30,  31,  536 

when  surety  not  estopped  by  recitals  of  obligation  signed  by  him         31,  32 
recital  of  existence  of  court  in  obligation  signed  by  surety  does 

not  estop  him  to  deny  the  fact 32 

surety  not  estopped  from  showing  that  the  instrument  signed  by 

him  is  not  his  deed  or  is  void 32 

surety  not  estopped  to  deny  an  allegation  in  the  recital  of  the 

deed  which  comes  from  the  other  side 32 

surety  estopped  to  deny  validity  obligation  of  principal,  when. .  104 
when  guarantor  for  railway  company  estopped  to  deny  its  exist- 
ence              121 

if  creditor  lead  surety  to  believe  to  his  injury  that  debt  is  paid 

he  is  estopped  to  deny  the  fact 211 

when  surety  of  constable  estopped  to  set  up  that  condition  upon 

which  he  signed  has  not  been  complied  with 363 

of  surety  to  show  failure  of  consideration  when  principal  could 

not  show  it 859 

sureties  who  have  signed  a  bond  reciting  the  ofHcial  character  of 

the  principal  are  estopped  to  deny  it 445 

EVIDENCE,  see  PAROL  EVIDENCE. 

what  is  sufficient,  of  fact  of  suretyship 20 

as  to  whether  promise  is  original  or  collateral 64 

of  the  way  a  party  to  whom  a  guai'anty  is  addressed  understood 

it  is  competent,  when 80 

return  of  execution  nulla  hona  is,  of  insolvency  of  defendant  in 

execution 84 

how  far  judgment  against  one  surety  is,  against  co-surety  in  suit 

for  contribution. 246 


700  INDEX. 

Section 
EVIDENCE— CoM/ntwei. 

agreement  ior  giving'  time  need  not  be  proved  by  dii-ect, 304 

payment  of  interest  by  principal  debtor  in  advance  is,  of  agree- 
ment for  extension 305 

•vvlien  settlement  by  or  judgment  against  executor  or  administra- 
tor is  conclusive,  against  surety  on  his  official  bond 496 

questions  of,  peculiarly  applicable  to  the  relation  of  principal 

and  surety 518  to  537 

when  declarations  or  admissions  of  principal  not,  against  surety. .  518 

declarations  and  admissions  of  principal  are,  against  surety  in 
joint  suit  against  them 519 

instances  of  admissibility  of  declarations  of  principal  as,  against 
surety 520 

where  declarations  of  principal  are  part  of  res  gestae  they  are 

evidence  against  surety 521 

how  far  entries  or  returns  made  by  public  officer  are,  against  his 
surety 522 

when  entries    made   by  deceased    principal    evidence    against 

surety 523 

when  and  how  far  judgment  against  principal  is,  against  surety  524  to  526 

judgment  rendered  against  principal  in  favor  of  surety  without 

notice  no,  in  another  state 528 

when  judgment  against  one  surety  is,  against  a  co-surety 529 

how  far  judgment  against  sheriff  is,  against  surety  in  his  official 
bond 580 

when  judgment  against  sheriff  is,  against  surety  in  bond  for  in- 
demnity    531 

when    judgment    against    administrator    conclusive    evidence 

against  surety  in  his  official  bond •     532 

how  far  judgment  against  guardian  is,    against  surety  in  his 
official  bond 533 

whether  pecuniary  embarrassments  of  officer  competent,  when 
his  official  misconduct  is  in  question 535 

when  refusal  of  treasurer  to  pay  order  is,  of  defalcation 535 

miscellaneous  cases  as  to,  in  suits  against  sureties 537 

EXECUTOR— 

appointment  of  principal  as,  by  creditor  discharges  surety 124 

agreement  by,  to  pay  one-half  his  commission  to  his  surety  for 

becoming  such  is  valid 195 

who  is  surety  of  testator,  and  pays  after  testator's  death  has  right 

of  retainer 196 

whether  surety  in  official  bond  of,  liable  till  devastavit  established 

by  suit  against  principal 494,  495 

when  surety  in  official  bond  of,  concluded  by  settlement  by,  or 

judgment  against,  principal 496 

liability  of  sureties  in  first  and  second  official  bonds  of 497 

liability  and  rights  of  surety  in  official  bond  of  two  executors 

when  one  dies  or  ceases  to  act 498 

miscellaneous  cases  as  to  liability  of  surety  in  official  bond  of, . . .      501,  502 


INDEX.  701 

Septtot^ 

EXECUTED  CONTRACT- 
IS  not  affected  by  the  statute  of  frauds 38 

EXECUTION  SALE— 

surety  may  bid  at,  of  principal's  property 195 

EXECUTION— 

sheriff  may  collect  full  amount  of,  against  principal  and  surety 

from  surety 82 

return  of  nulla  bona  evidence  of  insolvency  of  party  against 

whom  it  runs 84 

when  release  of  levy  of,  on  property  of  principal  discharges  surety  378  to  380 
when  surety  discharged  by  failure  of  creditor  to  have,  levied  on 

property  of  principal 382 

EXERCISE  OF  FUNCTION— 

bond  illegally  required  from  principal  as  condition  precedent 
to,  does  not  bind  surety 12 

EXTENSION  OF  TIME,  see  GIVING  TIME. 

PACT,  QUESTION  OF— 

whether  promise  original  or  collateral  is, 64 

FAILURE  OF  CONSIDERATION— 

upon  which  surety  signs  discharges  him 107 

surety  on  note  who  pays  without  notice  of,  may  recover  indemnity  197 
if  there  is,  for  agreement  of  surety  to  pay  whole  debt  he  may 

have  contribution  from  co-surety 245 

how,  affects  ]-ights  of  co-sureties  on  note  to  contribution 246 

wljen,  to  principal  is  a  defense  for  surety 359 

FALSE  REPRESENTATIONS— 

of  another's  credit  not  within  the  statute  of  frauds 59 

if  surety  is  injured  by,  of  creditor  that  debt  is  paid,  he  is  dis- 
charged   211 

by  creditor  to  surety  discharges  surety,  when 348 

of  third  person  does  not  discharge  surety,  when 360 

FAVORITE  IN  LAW— 

surety  is 79 

FEES— 

surety  on  note  liable  for  attorney's,  when  note  says  so 92 

FINE— 

suspending,  by  governor,  not  such  a  giving  of  time  as  discharges 
surety  for 314 

FINAL  JUDGMENT— 

when  surety  in  appeal  bond  Liable  for, 401 

FIRE— 

surety  in  official  bond  of  township  treasurer  liable  for  money 
destroyed  by 477 


702  INDEX. 

Section 
FIRM— 

one,  may  become  surety  of  anotlier 10 

FORBEARANCE- 

agreement  by  creditor  for,  is  a  sufficient  consideration  for  contract 

of  surety,  when 8 

by  creditor  without  an  agreement  therefor  not  suflBcient  consider- 
ation for  contract  of  surety 8 

FORFEITURE— 

court  of  equity  will  not  lend  its  aid  to  enforce,  for  indemnity  of 
surety 1"^ 

FORGERY- 

when  surety  discharged  because  signature  of  another  surety  is  a,  358 

FORTHCOMING  BOND— 

not  good  as  statutory  obligation  may  be  valid  as  common  law  bond  405 

surety  in,  for  slave  is  exonerated  by  death  of  slave,  when 405 

no  defense  to  surety  in,  that  property  did  not  belong  to  principal  405 

surety  in,  cannot  pay  the  debt  and  recover  from  the  principal 406 

miscellaneous  cases  concerning  sureties  in, 406 

surety  in,  for  property  attached  not  bound  by  agreement  between 

principal  and  creditor  that  attachment  shall  be  sustained 410 

surety  in,  for  property  attached  not  discharged  by  removal  of 

cause  from  state  to  federal  court 410 

-when  surety  in,  entitled  to  contribution  from  other  sureties 227 

FRAUD— 

when,  of  creditor  a  defense  to  surety 201 

perpetrated  by  creditor  on  principal  no  defense  to  surety  if  prin- 
cipal takes  no  advantage  of  it 201 

when  creditor  advising  principal  to  carry  property  out  of  state  is 

not,  on  surety 215 

as  affecting  liability  of  surety;  special  instances 216 

refusal  of  creditor  to  receive  payment  from  principal  is,  on  surety  295 

of  principal  does  not  discharge  surety  unless  creditor  have  notice  353 

miscellaneous  cases  holding  surety  discharged  by, 3G2 

when  surety  may  avail  himself  of,  upon  principal 362 

surety  may  impeach  judgment  against  principal  on  the  ground  of,  526 

FRAUDS,  STATUTE  OF— 

text  of  original  statute 37 

whether  verbal  promise  enforceable  if  partly  within  and  partly 

without  the, 38 

effect  of  the  words  "  no  action  shall  be  brought  " 38 

,meaning  of  the  words  "  any  special  promise  " 39 

■what  the  words  "  debt,  default  or  miscarriage  "  include 40 

what  the  words  "  of  another  "  contemplate  in  the, 41 

if  there  is  no  remedy  against  a  third  party,  promise  is  not  within 

the, 42 

when  no  liability  incurred  by  third  person,  promise  not  within  the,  43 

promise  to  answer  for  implied  liability  of  principal  is  within  the,  43 


INDEX.  703 

„  Section 

FRAUDS,  STATUTE  OF— Continued. 

when  party  for  whom  promise  is  made  cannot  become  liable, 

promise  not  within  the, 44 

when  promise  to  indemnify  another  is  within  the, 45  to  47 

if  new  promise  extinguishes  original  debt  it  is  not  within  the, ...  48 
when  promise  to  pay  out  of  proceeds  of  principal's  property  is 

not  within  the, 49 

when  creditor  relinquishing  lien  on  property  of  principal  takes 

promise  of  surety  out  of, 49,  50 

when  transaction  amounts  to  purchase  of  debt  or  lien  by  promisor, 

promise  not  within  the, 51 

promise  by  surety  who  is  debtor  of  principal  to  pay  the  debt  to 

creditor  of  principal  not  within  the, 52 

promise  in  effect,  to  pay  promisor's  own  debt  not  within  the,  al- 
though it  incidentally  guaranty  debt  of  another 53 

when  promisor  previously  liable  promise  not  within  the, 54 

new  consideration  passing  between  promisee  and  promisor  will 

not  alone  take  promise  out  of, 55 

when  main  object  is  to  benefit  promisor,  promise  is  not  within  the,  56 

promise  cf  del  credere  agent  not  within  the 57 

promise  not  within  the,  unless  made  to  party  to  whom  principal  is 

liable 58 

false  representations  of  another's  credit  not  within  the, 59 

promise  in  substance  to  pay  debt  of  another,  no  matter  what  its 

form,  is  within  the, 60 

promise  to  procure  a,nother  to  sign  a  guaranty  not  within  the, ...  60 
promise  by  receiptor  for  attached  property  to  return  it  on  de- 
mand not  within  the, 60 

contract  to  give  a  guaranty  is  not  within  the, GO 

promise  not  to  pay  without  giving  notice  to  creditor  of  creditor 

not  within  the, 60 

promise  to  answer  for  future  liability  of  third  party  is  within  the,  61 

promise  within  the,  if  any  credit  given  to  a  third  person 62,  68 

whether  promise  is  original  or  collateral.* 63 

verbal  guaranty  sufficient  to  support  verbal  account  stated 65 

if  original  promise  in  writing  verbal  subsequent  promise  takes 

case  out  statute  of  limitations 65 

of  the  writing  necessary  to  satisfy  the 66 

writing  to  satisfy  may  consist  of  several  pieces 66 

memorandum  to  satisfy,  may  be  made  after  contract 66 

the  whole  promise  must  appear  from  the  writing 67 

parties  to  the  contract  must  be  identified  by  the  writing 67 

whether  consideration  must  api3ear  from  writing  to  satisfy  the, . .  68,  69 

when  consideration  sufficiently  appears  from  writing  to  satisfy 

the, 70 

when  consideration  does  not  sufficiently  appear  to  satisfy  the, ...  71 
when  writing  ambiguous  as  to  consideration  it  may  be  explained 

by  parol  evidence 72 

when  several  papers  may  be  read  together  to  express  considera- 
tion   73 


'V04  INDEX. 

Section 
FRAUDS,  STATUTE  OF— Continued. 

whether  guaranty  of  note  must. express  consideration 74 

what  is  sufficient  signature  by  paxty  to  be  charged 75 

signature  of  party  to  be  charged  only,  necessary  to  satisfy  the, . .  75 

writing  to  satisfy,  may  be  signed  by  agent 76 

pleading  in  cases  within  the, 77 

FRAUDULENT— 

concealment  of  material  facts  in  order  to  discharge  surety  must  be,  366 

FRAUDULENT  CONVEYANCE— 

whether  surety  before  paying  debt  may  file  bill  to  set  aside,  by 
principal 195 

when  surety  subrogated  to  creditor's  right  to  set  aside,  by  prin- 
cipal   280 

FRAUDULENT  PREFERENCE— 

payment  which  is  void  as,  will  not  discharge  surety 290 

FRAUDULENT  SCHEME— 

when  surety  who  has  joined  with  principal  in,  can  recover  in- 
demnity   197 

FRAUDULENT  TRANSACTION— 

surety  on  note  induced  by,  not  bound 11 

FUTURE  LIABILITY— 

promise  to  answer  for,  of  third  party  is  within  the  statute  of 
frauds 61 


GAMBLING  DEBT— 

surety  on  note  for,  not  bound 11 

GENERAL  BOND— 

of  annual  officer  only  binds  surety  for  one  year 139  to  141 

when,  of  officer  does  not  cover  case  where  special  bond  required  142 

when  liability  of  surety  on,  limited  by  circumstances 142,  143 

of  officer  covers  more  than  a  year  when  the  office  is  not  annual  . .  145 

when  ;iot  Hmited  by  other  words  or  circumstances 145,  146 

GENERAL  GUARANTY— 

writer  of,  liable  to  any  one  who  acts  on  it 96 

GENERAL  ISSUE— 

fact  that  there  was  no  written  promise  may  be  taken  advantage 

of  under, 77 

GENERAL  WORDS— 

of  an  obligation  are  limited  by  the  recitals  of  the  obligation 138 

of  obligation  when  not  limited  by  other  words  or  circumstances      145,  146 

GIVING  TIME— 

how,  affects  liability  of  co-sureties  to  contribution 244 

discharge  of  surety  by 296  to  329 

to  the  principal  discharges  the  surety 296 


INDEX.  705 

Section 
GIVING  TIME— Continued. 

to  the  principal  discharges  the  guarantor 297 

does  not  discharge  the  surety  unless  extension  is  for  a  definite  period  298 

if  surety  consent  to,  he  cannot  take  advantage  of,  when 299 

when  surety  not  discharged  if  he  promise  to  pay  after  time  given  800 
surety  discharged  by  valid  agreement  for,  though  remedy  of 

creditor  not  suspended 301 

surety  who  is  fully  indemnified  is  not  discharged  by, 302 

to  the  surety  does  not  discharge  the  principal 303 

to  one  surety  affects  another  surety,  how.  •• 303 

special  instances  of  what  amounts  to, * 304 

agreement  for,  need  not  be  express  nor  proved  by  direct  evidence  304 
when  payment    of   interest    in    advance    by    principal    debtor 

amounts  to, 305 

when  payment  of  part  of  debt  suflScient  consideration  for, 306 

whether  agreement  to  pay  interest  for  a  definite  time  is  a  suffi- 
cient consideration  for, 307 

special  instances  of  sufficient  and  insufficient  consideration  for, . .  308 
whether  payment  of,  or  agreement  to  pay  usury  sufficient  consid- 
eration for, 309,  310 

how  surety  affected  if  time  is  given  by  one  of  several  creditors. .  311 
discharges  surety  who  becomes  such  without  knowledge  of  prin- 
cipal   311 

surety  discharged  by,  after  debt  is  due 312 

miscellaneous  cases  of  discharge  of  surety  by, 312,  313,  322 

suspending  fine  by  governor  is  not  such,  as  will  discharge  surety 

therefor 314 

miscellaneous  cases  holding  surety  not  discharged  by, 314,  315 

when  taking  principal's  note,  check  or  trust  deed  amounts  to,.. .  316  to  318 
parol  evidence  competent  to  show  that  taking  note  for  extended 

period  should  not  amount  to, 318 

when  taking  collateral  security  for  extended  period  does   not 

amount  to, 319,  320 

when   surety  not  discharged    by,  for  less  period  than  that  in 

which  judgment  could  be  recovered 321 

continuing  case  against  principal  amounts  to, 322 

how  surety  affected  by  conditional  agreement  for, 323 

agreement  for,  must  be  made  by  party  having  authority 323 

how  surety  for  collector  of  public  money  affected  by, 324 

when  surety  discharged  by,  after  judgment 325,  326 

whether  surety  on  specialty  discharged  by  parol  agreement  for, . .  327 
when  surety  discharged  by,  if  fact  of  suretyship  does  not  appear 

from  instrument 328 

to  principal  does  not  discharge  surety  if  remedy  against  surety 

reserved • 329 

to  principal  discharges  bail  in  a  civil  suit 425 

GOVERNMENT— 

surety  on  official  bond  of  one  officer  of,  not  discharged  by  negli* 

gence  or  unauthorized  act  of  another  officer  of, 474  to  476 

45 


706  INDEX. 

Section 
GUAEANTOR,  see  LIABILITY  OF  GUARANTOR. 

definition  of 1 

difference  between,  and  surety '. 1 

favorite  in  law  and  not  bound  beyond  strict  terms  of  contract. . .  79 

of  collection,  when  liable  to  suit 83 

when  only  secondarily  liable 84 

when  previous  proceedings  against  principal  not  necessary  to 

charge, 86 

when,  of  void  certificate  of  deposit  liable 89 

on  general  guaranty  liable  to  any  one  who  acts  on  it 96 

generally  only  liable  if  party  addressed  acts  on  guaranty 97 

for  goods  to  be  sold  a  firm  not  liable  for  goods  sold  after  part- 
ners changed 98 

when  liable  if  only  part  of  goods  guarantied  for  furnished 103 

not  liable  if  different  credit  given  than  that  stipulated  for 103 

when  blank  indorser  of  note  is,  and  when  he  is  not, 147  to  149 

of  note  when  liable  as  joint  maker 150 

when,  must  be  notified  of  acceptance  of  guaranty 157  to  162 

when,  not  entitled  to  notice  of  acceptance  of  guaranty 165 

when,  not  entitled  to  notice  of  advances  made  to  principal 166 

cases  holding,  of  indefinite  amount  on  credit  to  be  given  not  en- 
titled to  notice 167 

when  entitled  to  notice  of  default  of  principal 168 

when  demand  of  payment  on  principal  and  notice  of  his  default 

necessary  to  charge, 169 

not  entitled  to  demand  on  or  notice  of  default  of  insolvent  prin- 
cipal    173 

is  discharged  by  time  given  the  principal 297 

GUARANTY— 

origin  and  requisites  of  contract  of, 2 

cases  holding,  of  note  negotiable 33 

when,  of  debt  passes  to  assignee  of  debt 84 

cases  holding,  of  note  not  negotiable 35 

on  back  of  note  sufficient  indorsement  to  pass  title  to  note 36 

of  bond  not  negotiable 36 

when  writing  does  not  amount  to, 87 

when  writing  amounts  to, 88 

when  the  words  ' '  indorse  ' '  means, 88 

of  payment  ""  when  due  "  of  overdue  note  is  valid 89 

when,  may  and  when  it  may  not  be  acted  on  by  a  party  other 

than  the  one  addressed 96,  97 

of  note  secured  by  second  mortgage  does  not  give  such  mortgage 

priority  over  first  mortgage 105 

when  revoked  by  death  of  guarantor 113,  114 

when  not  exhausted  by  the  advance  of  the  amount  mentioned 

therein 133,  134 

when  exhausted  by  the  advance  of  the  amount  mentioned  therein  134 

GUARDIAN— 

whether  joint  guardians  are  sureties  for  each  other 490 


INDEX.  707 

_  _  Section 

GJJAKDIAI^— Continued. 

action  against  surety  in  bond  of, 491 

discharge  of  surety  in  official  bond  of,  by  order  of  court,  etc. . . .  492 

miscellaneous  cases  concerning  liability  of  surety  in  official  bond  of,  492,  493 

how  far  judgment  against,  evidence  against  surety  in  his  official 

bond 533 

HOLDER— 

of  note  presumed  to  be  the  owner,  when 323 

HONESTY— 

what  is  mere  guaranty  of,  and  not  of  payment  of  debt 110 

HOMESTEAD— 

wife  who  joins  her  husband  in  mortgage  of  his  land  for  his  debt 

not  as  to,  his  surety 22 

in  determining  question  of,  implied  promise  of  principal  to  in- 
demnify surety  arises  when  surety  becomes  bound 177 

ILLEGAL  ACTS— 

of  creditor  when,  and  when  not,  a  defense  to  surety 104 

IMPLIED  CONTRACT— 

of  indemnity  ai-ises  when  surety  becomes  bound 177 

there  is  no,  of  indemnity  where  no  obligation  on  surety  to  pay 
debt 184 

IMPLIED  GUARANTY— 

when  party  liable  on,  generally IC 

vendor  of  note  liable  on,  that  note  is  what  it  purports  to  be 16 

indorsement  of  note  is,  that  makers  were  competent  to  contract, 

and  that  preceding  signatures  are  genuine 16 

IMPLIED  PROMISE— 

there  is  no,  on  behalf  of  surety  to  person  who  lends  principal 

money  to  pay  the  debt 110 

there  is  an,  by  principal  to  indemnify  surety 176 

there  is  no,  of  indemnity  where  there  is  an  express  agreement . .      176,  245 

IMPORTER'S  BOND— 

surety  in,  may  recover  indemnity  from  party  mentioned  in,  as  im- 
porter   197 

IMPRISONMENT— 

when,  of  principal  amounts  to  payment 288 

when  surety  not  discharged  by  creditor  releasing  principal  from  377 

how  liability  of  bail  affected  by  subsequent,  of  principal 431 

IMPRISONMENT  FOR  DEBT— 

when  abolition  of  excuses  bail  in  civil  suit 429 

INCORPORATION— 

of  obligees  in  a  bond  discharges  the  sureties  therein 344 


708  INDEX. 

Section 
INDEMNITOR— 

of  surety  charged  if  surety  pay  by  his  own  note 106 

of  surety  entitled  to  subrogation 276 

of  bail  must  be  notified  that  bail  has  been  damnified  before  he 
can  be  sued 441 

INDEMNIFIED  SURETY— 

not  discharged  by  release  of  principal 123 

INDEMNIFYING    BOND— 

surety  in,  to  sheriff  liable  in  trespass  for  taking  of  property 423 

INDEMNITY— 

when  promise  to  indemnify  is  within  the  statute  of  frauds. . ; . . .       45  to  47 
there  is  no  impUed  promise  of,  when  there  is  an  express  contract 

for, 176 

there  is  an  implied  promise  of,  on  behalf  of  principal  to  surety  176 

implied  contract  of,  arises  when  surety  becomes  bound 177 

surety  may  recover  full,  from  any  one  of  several  principals 178 

surety  who  pays  debt  in  any  manner  may  sue  principal  in  as- 
sumpsit for, 178 

when  joint  sureties  can  and  when  they  cannot  maintain  joint  suit 

for, 179 

surety  who  pays  may  without  demand  or  notice  sue  principal  for,  180 

surety  cannot  recover,  unless  he  became  surety  at  request  of 

principal 130 

surety  who  pays  with  his  own  note  or  property  may  at  once  sue 

principal  for, 181 

surety  who  extinguishes  debt  for  less  than  full  amount  can  only 

recover  value  of  what  he  paid ,  182 

surety  cannot  recover  from  principal  as,  consequential  or  mdi- 

rect  damages 183 

right  of  surety  to,  who  pays  debt  as  affected  by  statute  of  limita- 
tions    184 

right  of  surety  to,  as  affected  by  suit  and  judgment  against  him 

or  principal 184 

how  affected  by  fact  that  debt  is  tainted  with  usury 185 

surety  who  pays  note  given  to  secure  illegal  wager  cannot  recover,  185 

when  surety  of  one  partner  entitled  to  recover,  from  the  firm. . .  186 

when  surety  can  recover  from  principal  costs  which  he  has  paid  187 

mortgage  for,  of  surety  valid,  what  it  covers 188 

how  surety's  claim  for,  affected  by  banki-uptcy  of  principal 189 

when  surety  may  recover,  from  principal  before  paying  the  debt  190 
contract  for  payment  of,  to  surety  before  he  pays  debt  is  valid  191 
when  surety  can,  and  when  he  cannot,  by  express  contract  re- 
cover, from  principal  before  paying  debt 190,  191 

mortgage  for,  can  only  be  held  ior  the  very  purpose  for  which  it 


was  given. 


191 


cases  in  which  surety  cannot  recover 194 

surety  who  has  two  indemnities  may  resort  to  either 195 

when  principal  becomes  insolvent,  surety  may  retain  any  funds 

in  his  hands  belonging  to  principal  for  his, 196 


INDEX.  709 

Section 
mBEUmTY— Continued. 

verbal  guarantor  who  pays  debt  may  recover, 196 

surety  on  note  of  infant  for  necessaries  may  recover 196 

when  surety  who  has  money  of  principal  in  his  hands  cannot 

sue  principal  for, 197 

when  surety  who  joins  in  fraudulent  scheme  with  principal  can 

recover, 197 

surety  who  pays  note  without  notice  of  failure  of  consideration 

may  recover, 197 

in  suit  for,  parol  evidence  is  competent  to  show  who  is  principal 

on  note 198 

principal  may  before  debt  is  due  confess  judgment  for  surety's, ..  213 

rights  of  surety  with  reference  to,  as  against  third  persons 213 

surety  cannot  recover,  from  party  who  has  agreed  with  principal 

to  pay  the  debt 217 

miscellaneous  cases  as  to  right  of  surety  to, 218,  219 

one  surety  may  show  by  parol  evidence  that  another  surety  agreed 

to  indemnify  him 226 

surety  who  becomes  principal  Hable  for  fuU,  to  former  co-surety  231 
when,  obtained  by  one  surety  inures  to  benefit  of  all  the  sureties  233  to  237 
surety  who  surrenders,  discharges  co-surety  from  contribution.. .  235 
if  surety  negligently  lose,  he  discharges  co-surety  from  contribu- 
tion   236 

surety  who  obtains,  after  all  the  sureties  have  paid  equal  amount 

not  obliged  to  share,  with  other  sureties 337 

when  action  for  contribution  may  be  brought  by  surety  holding,  238 

whether  right  of  surety  to  subrogation  barred  by  taking  separate,  267 
when  creditor  entitled  to  securities  given  by  principal  to  surety 

for  liis, 282  to  285 

creditor  cannot  avail  himself  of  personal,  given  surety  unless 

■  surety  could  have  done  so. .^ 284 

creditor  cannot  be  subrogated  to  personal,  of  surety  after  surety 

is  discharged 285 

surety  who  holds  full,  is  not  discharged  by  time  given 302 

bail  in  criminal  case  entitled  ft), 441 

how  fact  that  surety  holds,  affects  his  right  to  give  written  stat- 
utory notice  to  sue 509 

when  judgment  against  sheriff  evidence  against  surety  in  bond  for,  531 

INDICTMENT— 

when  failure  to  find,  against  principal  does  not  discharge  bail. . .  439 

INDORSE— 

when  the  word,  means  guaranty 88 

agreement  to,  does  not  render  party  liable  unless  he  is  requested 
to,  and  refuses Ill 

INDORSER— 

of  note  discharged  by  same  causes  that  wUl  discharge  a  surety. .  107 

in  blank,  liability  of;  general  observations 152 

Hable  according  to  the  terms  of  his  indorsement 154 


710  IKDEX. 

Section 
mBOUSER— Continued. 

liability  of,  under  special  indorsements  and  circumstances 155 

of  bill  of  exchange,  liability  of, .--  156 

wlien  successive  accommodation  parties  to  negotiable  instruments 

are  co-sureties 225 

of  note  is  not  co-surety  with  surety  who  signs  as  maker 225 

of  note  discharged  by  time  given  the  maker 312 

INDORSEMENT— 

of  promissory  note  by  vendor  thereof  is  implied  guaranty  of  the 

genuineness  of  preceding  signatures 16 

guaranty  on  back  of  note  is  a  sufficient,  to  pass  title  to  note 36 

of  another's  obligation  in  blank  creates  what  liability 147  to  152 

presumptions  as  to  time  when,  made 147,  149 

when,  expresses  liability  binds  indorser  to  such  liability 154 

liability  of  indorser  under  special, 155 

INEQUITABLE— 

contribution  cannot  be  recovered  when  it  would  be, 228 

subrogation  will  not  be  allowed  when  it  is 265 

INFANT— 

contract  of  suretyship  or  guaranty  by,  voidable,  may  be  ratified. .  3 

promise  to  pay  debt  of,  not  within  statute  of  frauds 44 

surety  for,  liable  although  infant  is  not 128 

surety  on  note  of,  for  necessaries  may  recover  indemnity 196 

INITIALS— 

signature  by,  sufficient  to  satisfy  the  statute  of  frauds 75 

INJUNCTION— 

surety  cannot  before  payment  of  debt  prevent  principal  from  re- 
moving property  from  state  by, 195 

when  surety  before  paying  debt  may  by,  prevent  co-surety  from 
parting  with  his  property 239 

got  by  principal  against  creditor  proceeding  does  not  discharge 
surety 321 

INJUNCTION  BOND—  * 

voluntary,  not  given    according  to  statutory    provisions  binds 

surety 13 

when  surety  in,  not  liable  for  judgment  if  it  is  misdescribed 411 

liability  of  surety  in,  for  judgment,  for  damages,  for  interest,  etc.  412 
liability  of  surety  in,  if  complainant  dismiss  his  bill   by  agree- 
ment with  defendant 413 

liability  of  surety  in,  when  one  only  of  several  for  whom  he  is 

liable  is  charged 414 

miscellaneous  cases  concerning  sureties  in, 415 

when  decree  against  principal  conclusive  against  surety  in, 534 

INJURY— 

when  surety  has  a  remedy  in  equity  to  prevent,  to  himself  before 
payment  of  the  debt 193 


INDEX.  Til 

„^^^  Section 

INJJJUY— Continued. 

act  of  Lreditor  which  works,  to  surety  must  be  unlawful  to  dis- 
charge him 200 

if  surety  suffer,  by  false  representation  of  creditor,  that  debt  is 
paid  he  is  discharged,  otherwise  not 211,  212 

INSOLVENCY— 

return  of  execution  nicUa  bona  evidence  of,  of  defendant  in  execu- 
tion   84 

of  principal  excuses  necessity  of  demand  on  him  and  notice  of 
his  default  to  guarantor 173 

upon,  of  the  principal  surety  is  in  equity  his  creditor 219 

whether  surety  must  show,  of  principal  in  order  to  recover  con- 
tribution    254 

INSOLVENT  LAWS— 

discharge  of  principal  under,  does  not  release  principal 126 

INSOLVENT  PRINCIPAL— 

cannot  without  indemnifying  surety  collect  debts  due  him  by 
surety ^. 196 

INSTALMENTS— 

when  payment  of,  faster  than  due  discharges  surety  for  comple- 
tion of  work 102 

surety  may  pay  debt  by,  and  sue  principal  for  each,  payment 177 

INSURANCE— 

fact  that  building  is  burned  and  landlord  gets,  does  not  release 

surety  for  rent 90 

surety  entitled  to  money  realized  from  insurance  on  house  of 

principal,  when 218 

INTEREST— 

guaranty  of  payment  of,  on  bond  not  bearing,  binds  guarantor 

to  payment  of,  after  bond  is  due 92 

an  official  bond  does  not  bear, 93 

guaranty  of  payment  of,  on  bond  only  covers  interest  accruing 

before  maturity  of  bond 110 

surety  who  has  paid,  not  entitled  to  subrogation  till  principal  is 

paid 266 

payment  of,  in  advance  by  principal  discharges  surety,  when .   .  305 

whether  agreement  to  pay,  for  a  definite  time  is  sufiicient  con-     ■ 

sideration  for  extension 307 

binding  agreement  to  pay  increased  lawful  rate  of,  sufficient  con- 
sideration for  giving  time 308 

adding  to  note  is  alteration  which  discharges  surety 331 

agreement  by  principal  without  surety's  knowledge  to  pay  loigh 

rate  of,  discharges  surety 345 

when  surety  on  injunction  bond  liable  for,  on  judgment 412 

surety  on  official  bond  of  treasurer  Liable  for,  on  public  money 

received  by  him 455 


712  INDEX. 


Section 


INTERMARRIAGE— 

of  principal  and  creditor  releases  surety,  when 109 

INTERVENING  EQUITIES— 

implied  contract  of  principal  to  ihdemnify  surety  arises  when 
surety  becomes  bound  and  overrides, 177 

INTENTION— 

misrepresentation  of  unexecuted,  does  not  discharge  surety 351 


JOINT  ACTION— 

when,  can  be  sustained  against  principal  and  surety 115 

when  statute  does  not  authorize,  against  maker  and  guarantor  of 

note 116 

when  joint  sureties  can  and  when  they  cannot  maintain,  for  in- 
demnity   179 

JOINT  MAKER— 

one  of  several  joint  makers  of  note  may  show  by  parol  evidence 

that  he  is  surety ". 17 

when  guarantor  of  note  liable  as, 150 

when  blank  indorser  of  note  liable  as 151 

JOINT  MORTGAGE— 

by  two  of  joint  property  may  be  foreclosed  and  all  the  property 
sold  to  pay  note  of  one 105 

JOINT  OBLIGOR— 

when  one  of  several  joint  obligors  may  show  by  parol  that  he  is 

surety 18 

when  one,  surety  for  another 25 

JOINT  OBLIGATION— 

death  of  surety  m,  releases  his  estate  from  all  liability 117 

JOINT  PURCHASERS— 

of  several  tracts  of  land,  how  far  they  are  sureties  for  each  other  105 

when,  of  land  are  co-sureties 231 

JOINT  SURETIES— 

successive  accommodation  indorsers  of  bill  of  exchange  are  not,  156 

when,  can  and  when  they  cannot  bring  joint  suit  for  indemnity.  179 

JUDGMENT— 

surety  entitled  to  the  same  rights  after,  as  before 27 

against  principal  alone  conclusive  against  surety,  when 91 

against  party  indemnified  as  to  "  liabilities  "  renders  indemnitor 

•  liable 106 

when  surety  discharged  by  release  of  principal  after, 125 

surety  who  has  bought,  against  himself  and  principal  cannot 

recover  indemnity  without  satisfying 194 

principal  may  before  debt  is  due  confess,  for  indemnity  of  surety  213 

surety  who  pays,  may  prosecute  creditor's  bill  already  filed  by 

creditor  against  principal 239 


INDEX.  713 

Section 
JUDGMENT— Con<;nt(e(f. 

surety  who  pays,  may  afterwards  have  execution  thereon  against 

co-surety 243 

against  one  surety,  how  far  evidence  against  co-surety  in  suit  for 

contribution 246 

subrogation  of  surety  who  pays,  to  creditor's  rights  therein 270  to  272 

when  surety  discharged  by  giving  time  after, 325,  326 

against  principal  does  not  bar  suit  against  surety,  when 340 

when  surety  discharged  by  neghgence  of  creditor  in  prosecuting, 

against  principal 388 

may  be  rendered  against  surety  in  appeal  bond  without  suit, 

when 398 

when,  against  principal  is  conclusive  against  surety  in  bond 

given  to  dissolve  attachment 408 

when,  against  executor  or  administrator  conclusive  against  surety 

on  his  official  bond 496 

surety  may  impeach,  against  principal  on  the  ground  of  fraud. .  526 

when  and  how  far,  against  principal  is  evidence  against  surety  624  to  526 
rendered  against  principal  in  favor  of  surety  without  notice  no 

evidence  in  another  state 528 

when,  against  one  surety  evidence  against  a  co-surety 529 

how  far,  against  sheriff  is  evidence  against  surety  on  his  official 

bond 530 

when,  against  sheriff  evidence  against  surety  in  bond  for  in- 
demnity   531 

when,  against  administrator  conclusive  evidence  against  surety 

on  his  official  bond .   532 

how  far,  against  guardian  evidence  against  surety  in  his  official 

bond 533 

JUSTICE  OF  THE  PEACE— 

liability  of  surety  in  official  bond  of, 480 

when  surety  in  official  bond  of,  liable  for  money  received  by  him  481 

how  surety  in  official  bond  of,  affected  by  his  death 482 

entry  of  satisfaction  of  judgment  by,  conclusive  evidence  against 

surety  on  his  official  bond 522 


KNOWLEDGE— 

surety  who  signs  without  the,  of  principal  is  bound 107 

want  of,  on  the  part  of  one  surety  that  another  was  surety  does 
not  affect  the  right  to  contribution 228 

surety  will  be  subrogated  to  securities  obtained  by  creditor  with- 
out his, 261 

surety  who  becomes  such  without,  of  principal  discharged  by 
time  given 311 

KNOWLEDGE  OF  CREDITOR— 

of  fact  of  suretyship,  sufficient  to  secure  surety  his  rights 17 

of  fact  of  suretyship,  no  matter  when  obtained,  entitles  surety 
from  that  time  to  all  the  rights  of  a  surety 19 


714  INDEX. 

Sectioji 
KNOWLEDGE  OF  CREmTOU— Continued. 

that  surety  is  such  must  be  shown  by  surety 20 

of  fact  of  suretyship  as  affecting  discharge  of  surety  by  giving  time  328 

LACHES— 

cannot  be  imputed  to  the  State 474 

LAND— 

what  contribution  surety  who  pays  in,  is  entitled  to  recover 250 

surety  for  purchase  money  of,  cannot  resist  payment  because 
vendor  fails  to  pay  a  prior  incumbrance 363 

LEASE— 

when  surety  on,  liable  for  rent  of  extended  term  if  principal  hold 

over 90 

surety  on,  not  discharged  by  fact  that  building  is  burned  and 

landlord  gets  insurance 90 

when  surety  on,  may  terminate  his  liability  by  notice 114 

when  notice  of  acceptance  of  guaranty  not  necessary  to  charge 

guarantor  of, 164 

when  surety  on,  discharged  by  alteration  of  contract 339 

legislature- 
Is  agent  of  state  to  make  representations  to  surety  of  state  officer  360 

LETTER— 

sufficient  memorandum  to  satisfy  the  statute  of  frauds 66 

LETTER  OF  CREDIT— 

general,  is  addressed  to  every  one  and  sufficiently  identifies  par- 
ties tu  satisfy  statute  of,  frauds 67 

addressed  to  one  with  the  design  that  it  be  shown  to  another 
may  be  sued  on  by  the  latter 96 

writer  of  general,  not  bound  unless  notified  of  acceptance 158 

LEVY— 

when,  on  property  of  principal  does  not  amount  to  payment ....  288 

when  sm-ety  discharged  if  creditor  release,  on  property  of  prin- 
cipal    378  to  380 

when  surety  discharged  by  failure  of  creditor  to  have,  made  on 
property  of  principal 382 

when  surety  in  official  bond  of  sheriff  or  constable  liable  for  un- 
authorized, made  by  him 484 

LIABILITY— 

when  no,  incurred  by  third  person  promise  not  within  statute  of 
frauds 43 

indemnity  against,  is  broken  by  judgment  against  party  indem- 
nified    106 

when,  to  contribution  attaches 258 

LIABILITY  OF  GUARANTOR— 

when  guarantor  only  secondarily  liable 84 


INDEX.  715 

Section 
LIABILITY  OF  GUARANTOR— Con^mwecZ. 

when  no  previous  proceedings  against  principal  are  necessary  to 

charge  guarantor 86 

when  writing  does  not  amount  to  a  guaranty 87 

when  writing  does  amount  to  a  guaranty 88 

when  the  guarantor  of  a  void  certificate  of  deposit  is  liable  for 

the  amount  of  it 89 

guaranty  of  payment  "  when  due  "  of  overdue  note  is  valid 89 

on  general  guaranty 96 

on  guaranty  addressed  to  another  than  the  one  acting  on  it 96,  97 

when  greater  amount  than  guaranty  covers  advanced  principal. .  103 

when  guarantor  entitled  to  notice  of  acceptance  of  guaranty. . . .  157  to  162 

LIABILITY  OF  SURETY— 

surety  or  guai'antor  not  liable  beyond  strict  terms  of  his  engage- 
ment   79 

surety  liable  for  whole  debt  no  matter  how  small  the  considera- 
tion    81 

when  surety  or  guarantor  in  default  no  demand  necessary  before 

suing  Jiim 82 

when  surety  liable  before  party  indemnified  has  suffered  loss. ...  82 
when  surety  is  concluded  by  result  of  litigation  between  other 

parties 91 

when  surety  for  debt  liable  for  additional  damages 92 

when  surety  liable  beyond  the  penalty  of  his  bond 93 

on  a  note  when  it  is  discounted  by  a  party  other  than  the  payee  94,  95 

when  party  for  whom  he  is  liable  acts  in  conjunction  with  others  98,  100 
for  the  acts  of  one  person  if  such  acts  are  performed  by  him  and 

a  partner 98,  100 

to  or  for  firm  if  partners  changed  99 

cannot  be  extended  beyond  the  scope  of  his  obligation;  instances  102 

as  effected  by  illegal  act  of  principal  or  creditor 104 

a  surety  is  not  liable  to  a  person  who  at  the  request  of  the  prin- 
cipal alone  pays  the  debt 109 

surety  not  liable  on  implied  promise  to  party  who  lends  princi- 
pal money  to  pay  the  debt 110 

when  surety  may  relieve  himself  from  future  liability  by  notice  113,  114 
death  of  surety  in  joint  obligation  releases  his  estate  at  law  and 

equity  will  not  change  it 117 

surety  not  liable  at  law  will  not  generally  be  charged  in  equity . .  117,  118 

is  revived  by  new  promise,  when 119 

cannot  generally  exceed  that  of  principal 121 

when  surety  not  liable  if  principal  not  bound 121 

when  principal  does  not  sign  the  obligation 127 

for  infant  or  married  woman  who  is  not  bound 128 

on  general  obligation  limited  by  the  recitals  thereof 138 

surety  on  general  bond  of  annual  officer  only  liable  for  one  year  139  to  141 
on  general  bond  of  oflicer  as  to  matter  concerning  which  special 

bond  i-equired 142 

when,  on  general  obligation  is  limited  by  circumstances 142,  143 


71 G  INDEX. 

LIABILITY  OF  SURETY— Continued.  Section 

when  surety  on  bond  of  annual  officer  bound  longer  than  a  year  144 
when  general  words  of  obligation  not  limited  by  other  words  or 

circumstances 145,  146 

where  several  sureties  bound  creditor  will  not  be  delayed  proceed- 
ing against  one  till  remedies  against  others  exhausted 215 

on  obligations  given  in  the  course  of  the  administration  of  justice  393  to  424 

LICENSE— 

liability  of  surety  on  bond  of  manufacturer  of  tobacco  continued 

after  expiration  of  manufacturer's 145 

LIEN— 

when  building  which  occupies  position  of  surety  discharged  from,  21 

when,  on  real  estate  occupies  the  position  of  a  surety 21 

when  relinquishing,  on  property  of  principal  takes  promise  of 
surety  out  of  statute  of  frauds 49 

when  relinquishing,  on  property  of  principal  does  not  take 
promise  of  surety  out  of  statute  of  frauds 50 

surety  may  enforce  any,  of  the  creditor  for  the  payment  of  the 
debt  before  himself  paying  it : .  192 

if  creditor  relinquish  or  render  unavailing,  on  property  of  princi- 
pal for  payment  of  the  debt  surety  discharged  pro  tanto 870  to  372 

when  relinquishment  of,  by  creditor  on  property  of  principal 
does  not  discharge  surety 375 

LIMITATIONS,  STATUTE  OF— 

if  original  promise  in  writing  verbal  subsequent  promise  takes 

case  out  of  the, 65 

when,  begins  to  run  in  favor  of  surety  or  guarantor 120 

when  sureties  estopped  from  setting  up,  by  unconscionable  litiga- 
tion of  principal 120 

when  new  promise  by  principal  takes  case  out  of,  as  to  surety. . .  120 

when,  is  a  bar  for  the  principal  it  is  a  bar  for  the  surety 124 

how  right  of  surety  to   indemnity   affected    if  he   pays    debt 

barred  by 184 

as  between  prmcipal  and  surety  on  claim  for  indemnity 199 

when,  a  bar  to  claim  for  indemnity  by  surety  against  principal  in 

a  note , 245 

when  a  bar  to  claim  for  contribution  between  co-sureties 259 

surety  not  entitled  to  subrogation  after,  has  run 267 

peculiar  cases  with  reference  to,  as  concernmg  sureties 516 

LITIGATION— 

when  surety  concluded  by  result  of,  between  other  parties 91 

LOST  BOND— 

equity  will  setup,  against  surety 118 


MARK— 

by  a  marksman  is  a  sufficient  signature  to  satisfy  the  statute  of 
frauds 75 


INDEX.  717 

Section 
MARRIED  WOMAN— 

cannot  unless  enabled  by  statute  become  surety  or  guarantor. ...  4 

■when  statute  empowers  her  to  become  surety  or  guarantor 4 

who  joins  her  husband  in  mortgage  of  his  land  for  his  debt  not 

his   surety 22 

who  mortgages  or  pledges  her  property  for  debt  of  her  husband 

is  to  that  extent  his  surety 22  198 

surety  for,  liable  although  she  is  not 128 

MARSHALING  ASSETS— 

equity  will  not  marshal  assets  so  as  to  destroy  surety's  right  to 
subrogation '. 276 

MEASURE  OF  DAMAGES— 

when  guaranty  is  that  a  certain  sum  is  due  on  a  note 81 

on  guaranty  that  railroad  stock  shall  yield  a  named  annual  divi- 
dend   110 

for  breach  of  duty  of  sheriff  with  reference  to  process 485 

•MAIN  OBJECT— 

when  the,  of  promisor  is  to  benefit  himself  promise  not  within 
statute  of  frauds 56 

MEMORANDUM— 

form  of,  necessary  to  satisfiy  the  statute  of  frauds 66 

to  satisfy  statute  of  frauds  may  be  made  after  contract 66 

to  satisfy  the  statute  of  frauds  may  consist  of  several  pieces 66 

to  satisfy  statute  of  frauds  may  be  written,  printed  or  stamped, 

with  ink  or  pencil 66 

the  whole  promise  must  appear  from,  to  satisfy  the  statute  of  frauds  67 

MISDESCRIPTION— 

of  judgment  in  bond  will  be  corrected  in  equity 118 

of  mortgaged  property  will  be  reformed  by  equity  against  surety  118 

MISREPRESENTATION— 

creditor  telling  surety  that  signing  is  matter  of  form,  does  not 

discharge  surety    215 

of  transaction  by  creditor  to  surety  discharges  surety,  when 348 

of  an  unexecuted  intention  does  not  discharge  surety 351 

of  principal  to  induce  surety  to  become  bound  does  not  discharge 

surety  unless  creditor  have  notice 353 

by  principal  to  surety  that  another  shall  sign  bond  does  not  dis- 
charge surety  if  creditor  has  no  notice 355 

MISTAKE— 

equity  will  reform  instrument  against  surety  when  by,  it  does  not 

express  intention 118 

MISTAKE  OF  LAW— 

sureties  who  make  new  promise  under,  are  not  bound  thereby. .  •  119 

MONEY  PAID— 

by  a  surety,  bound  by  a  verbal  promise  only,  cannot  be  recovered 
back  by  him 38 


'18  INDEX. 


Section 


MORAL  OBLIGATION— 

surety  under  no,  to  pay  debt  of  principal 80 

MORTGAGE - 

property  mortgaged  for  debt  of  another  occupies  position  of  surety  21 

property  of  wife  mortgaged  for  debt  of  husband  occupies  posi- 
tion of  surety 22 

creditor  not  obliged  to  exhaust,  on  property  of  principal  before 

suing  surety 82 

when,  on  property  of  principal,  must  be  exhausted  before  guar- 
antor liable  to  suit ."  83 

for  indemnity  of  surety  valid*,  what  it  covers 188 

for  indemnity  can  only  be  held  for  the  very  purpose  for  which  it 
was  given 191 

surety  may  have,  for  payment  of  debt  foreclosed  before  paying 
debt 193 

where  principal  and  surety  have  both  made,  to  secure  debt  prop- 
erty of  principal  should  be  first  sold 204 

surety  entitled  to  subrogation  to,  given  by  principal  to  secure  the 
debt 275 

given  by  surety  for  security  of  debt  after  maturity  thereof  does 
not  deprive  him  of  his  rights  as  surety 312 

when,  for  extended  period  taken  as  collateral  security  does  not 

amount  to  giving  time 320 

surety  for  purchase  money  of  land  cannot  resist  payment  because 
vendor  has  not  paid  prior,  on  the  land 363 

when  surety  discharged  by  failure  of  creditor  to  record,  for  pay- 
ment of  the  debt 389 

MOTION— 

surety  for  alimony  cannot  be  compelled  to  pay  it  by 116 

MUTUAL  COVENANTS— 

when  liability  of  surety  depends  on,  obligee  must  first  perform 
bis  covenants 112 


NAME— 

of  surety  omitted  from  body  of  instrument  does  not  release  him  15 

when,  of  surety  in  body  of  obligation  is  notice  of  condition  that 

he  should  sign 357 

change  in,  of  collection  district  will  not  discharge  surety  of  col- 
lector   472 

NEGLIGENCE— 

of  surety  in  reading  bond  cuts  him  off  from  relief,  when 107 

of ,  surety  which  results  in  loss  of  indemnity  discharges  co-surety 
from  contribution 236 

of  master  in  discovering  sei-vant's  def  lult  will  not  discharge  his 
surety,  when 367 

of  officers  of  corporation  to  comply  with  by-laws  does  not  dis- 
charge sureties  of  another  officer 369 


INDEX.    ,  719 

•  Section 

NEGLIGENCE— CoM^tnwec?. 

of  creditor  by  which,  securities  for  debt  are  lost  discharges 
surety 384  to  386 

instances  of  discharge  of  surety  by,  of  creditor  in  preserving  or 
perfecting  securities 387 

of  creditor  is  considered  his  act 387,  388 

when  surety  discharged  by,  of  creditor  in  prosecuting  suit  or 
judgment  against  principal 388 

when  surety  discharged  by,  of  creditor  in  failing  to  record  mort- 
gage for  security  of  the  debt 389 

cases  holding  surety  not  discharged  by,  of  creditor 390,  391 

surety  not  discharged  by,  of  creditor  in  failing  to  present  claim 
against  estate  of  deceased  principal 392 

of  one  set  of  officers  does  not  discharge  surety  on  official  bond  of 
another  officer 474 

NEGOTIABLE— 

cases  holding  guaranty  of  note, 33 

cases  holding  guaranty  of  note  not, 35 

guaranty  of  bond  is  not 36 

NEGOTIABLE  INSTRUMENTS— 

liability  of  accommodation  parties  to, 147  to  156 

when  accommodation  parties  to,  are  co-sureties 225 

when  taking  principal's,  for  extended  period  amounts  to  giving 
time 316  to  318 

NEW  CONSIDERATION— 

passing  between  promisee  and  promisor  will  not  alone  take  prom- 
ise out  of  statute  of  frauds 55 

NEW  PROMISE— 

revives  liability  of  surety  who  is  discharged,  when 119 

NON-PAYMENT- 

what  presumptions  arise  from,  by  principal 535 

NON-RESIDENT— 

of  state  received  as  bail  bound,  although  statute  says  bail  shall 
be  resident 4 

NON-SUIT— 

when  surety  in  appeal  bond  not  discharged  if  plaintiff  take, 

which  is  afterwards  set  aside  by  consent 400 

NOTE— 

cases  holding  guaranty  of,  negotiable 33 

cases  holding  guaranty  of,  not  negotiable 35 

guaranty  on  back  of,  sufficient  to  pass  title  to, 36 

whether  guaranty  of,  must  express  consideration 74 

liability  of  surety  on,  when  it  is  discounted  by  party  other  than 

payee 94,  95 

diversion  of  from  purpose  intended  discharges  surety  if  creditor 

has  notice -  •  95 


720  INDEX. 

Sectioit 
'NOTE— Continued. 

giving  of,  for  amount  due  does  not  discbarge  surety  for  price  of 

merchandise,  when ' 112 

what  is  the  liability  assumed  by  the  blank  indorser  of, 147  to  152 

surety  who  pays  by  his  own,  may  at  once  sue  principal  for  in- 
demnity    181 

surety  who  pays  by  his  own,  may  recover  contribution 249 

surety  discharged  by  changing  date  of,  or  adding  interest  to, . . .  331 

when  taking  principal's,  for  extended  period  amounts  to  giving 

time 316  to  318 

holder  of,  presumed  to  be  the  owner 323 

how  alteration  of,  by  addition  of  new  party  affects  principal  and 

surety  in, •. 332 

what  alteration  of,  will  and  will  not  discharge  surety 333 

surety  on,  not  discharged  if  creditor  have  no  notice  of  condition 
on  which  he  signed 354 

NOTICE— 

record  of  title  to  wife's  real  estate  which  she  mortgages  for  debt 

of  her  husband  sufficient,  of  suretyship 22 

when  surety  can  and  when  he  cannot  relieve  himself  from  future 

Uability  by, 113,  114 

to  guarantor  of  acceptance  of  guaranty  necessary  to  charge  him, 

when 157  to  162 

of  acceptance  necessary  to  charge  writer  of  general  letter  of 

credit 158 

when,  of  acceptance  of  guaranty  addressed  to  particular  person 

necessary  to  chargvj  guarantor 159 

when  guarantor  must  have,  of  advances  made  under  guaranty. .  163 

of  amount  due  after  all  transactions  closed  sufficient,  of  amount 

of  advances 163 

of  acceptance  of  guaranty  not  necessary  to  charge  guarantor  of 

definite  liability 164 

when  guarantor  not  entitled    to,    of  acceptance  of  guaranty; 

instances 165 

when  guarantor  not  entitled  to,  of  advances  made  to  principal.  •  166 

cases  holding  guarantor  of  indefinite  amount  on  credit  to  be 

given  not  entitled  to, 167 

when  guarantor  entitled  to,  of  default  of  principal 168,  169 

of  principal's  default  not  necessary  to  charge  guarantor,  when. .      170,  171 

no,  necessary  to  charge  guarantor  of  rent  to  come  due 172 

no,  need  be  given  of  principal's  default  to  charge  guarantor  of 

over  due  debt 172 

of  principal's  default  not  necessary  to  charge  party  who  guaran- 
ties note  by  separate  instrument 172 

of  insolvent  principal's  default  not  necessary  to  charge  guarantor  173 

what  is  the  reasonable  time  in  which,  must  be  given  guarantor  174 

it  is  sufficient  to  allege,  generally  in  pleading 174 

when  unnecessarily  alleged  in  pleading  may  be  treated  as  sur- 
plusage   174 


INDEX.  721 

Section 
liiOTlCE— Continued. 

necessary  to  charge  guarantor  what]  is  suflBcient  and  how  it  may 

be  given 175 

how,  may  be  proved 175 

surety  who    pays    may  sue  principal    for    indemnity  without 

any 180 

right  of  surety  to  indemnity  not  affected  by  his  failure  to  give 

principal,  of  suit  against  him 184 

when  creditor  not  bound  to  give  surety,  of  sitting  of  arbitrators, 

offer  to  pay  note,  etc. .  • '. 214 

surety  may  sue  co-surety  for  contribution  without  previous, 257 

subrogation  will  be  enforced  against  third  parties  with, 276 

fraud  of  principal  on,  or  misrepresentation  to,  surety  will  not  dis- 
charge him  unless  creditor  have, 353 

surety  on  note  not  discharged  if  creditor  have  no,  of  condition  on 

which  he  signed 354 

when  surety  bound  by  bond  if  obligee  have  no,  of  condition  that 

another  shall  sign 355 

when  name  of  surety  in  body  of  obligation  is,  of  condition  that 

he  should  sign 357 

failure  of  creditor  to  give  surety,  of  principal's  default  is  not  such 

concealment  as  discharges  surety 368 

sureties  in  sheriff 's  official  bond  not  entitled  to, 477 

what,  to  sue  sufficient  under  statute 504 

to  whom  statutory,  to  sue  must  be  given 505 

waiver  of  written  statutory,  to  sue 508 

miscellaneous  cases  as  to  statutory,  by  surety  to  creditor  requir- 
ing him  to  sue 513 

judgment  rendered  against  principal  in  favor  of  surety  without, 

no  evidence  in  another  state 528 

NOVATION— 

if  the  original  debt  is  novated  by  a  new  promise  it  is  not  within 
the  statute  of  frauds 48 


OATH  OF  OFFICE— 

fact  that  officer  does  not  take,  no  defense  to  his  surety 445 

OBLIGATION  OF  SURETY— 

cannot  be  sold  separate  from  that  of  principal 36 

OFFER  TO  GUARANTY— 

may  at  any  time  before  it  is  accepted  be  revoked 114 

must  be  accepted  and  guarantor  notified  thereof  to  bind  him 157,  158 

OFFER  TO  PAY— 

if  principal,  debt  to  creditor  and  he  refuse  to  receive  it,  surety 

discharged 295 

OFFICE— 

when  surety  not  bound  after  change  in  tenure  of  principal's 142 

46 


722  INDEX. 

Section 
OFFICER— 

how  far  entries  or  returns  made  by  public,  are  evidence  against 
his  surety 522 

OFFICIAL  BOND— 

general  bond  of  annual  ofBcer  only  binds  surety  for  one  year. . . .  139  to  141 
when  surety  on  bond  of  annual  officer  bound  longer  than  a  year  144 
surety  on,  of  officer  of  corporation  not  discharged  because  by- 
laws not  complied  with 369 

liability  and  discharge  of  surety  on, 442  to  502 

liability  of  surety  on,  required  by  statute  when  statute  not  strictly 

complied  with 442 

liability  of  surety  when,  contains  provisions  in  excess  of  statutory 

requirements 443 

surety  on  voluntary  bond  of  officer  liable,  when 444 

sureties  of  an  officer  de  facto  are  liable  for  his  acts 445 

when  no  defense  to  surety  on,  that  principal  does  not  rightfully 

hold  office 445 

liability  of  surety  on,  of  treasurer  where  money  deposited  with 

him  was  illegally  obtained 446 

liability  of  surety  on,  of  collector  of  taxes 447 

surety  on,  of  state  treasurer  liable  for  money  received  by  him 

which  has  not  been  audited 447 

surety  on,  of  sheriif  liable  for  money  collected  by  him  even 

though  judgment  and  execution  irregular 448 

when  surety  on,  not  liable  for  default  of  principal  occurring  before 

execution  of  surety's  obligation 449 

when,  takes  effect 450 

surety  on,  not  liable  for  money  received  by  principal  out  of  line 

of  his  duties 451 

cases  holding  surety  on,  liable  for  particular  acts  of  principal. . .  452 

liability  of  surety  on,  of  clerk  of  court 453 

surety  on,  not  liable  for  services  rendered  officer  by  indi\adual3  . .  454 
surety  on,  of  treasurer  liable  for  interest  on  pubhc  money  re- 
ceived by  him 455 

whether  surety  on,  liable  for  penalties  incurred  by  officer 458 

surety  on,  discharged  if  injured  by  act  of  obligee 457 

when  surety  on,  of  sheriff  liable  for  acts  done  by  him  after  ter- 
mination of  his  office 458 

cases  holding  surety  on,  liable  for  acts  of  officer  after  expiration 

of  his  official  term 459 

cases  holding  surety  on,  not  liable  for  acts  of  officer  after  expira- 
tion of  his  term 460 

when  surety  on  old,  of  officer  discharged  if  under  requirement 

of  statute  he  give  new, 461 

liability  of  surety  on  second,  for  same  term  of  officer 462 

hability  of  sureties  on  different  bonds  of  same  officer  for  same 

term 463 

when  officer  holds  several  terms  surety  on,  during  time  when  de- 
fault occurs  Liable 464 


iiTOEX.  723 

--,^^  ^  Section 

OFFICIAL  BOli^D— Continued. 

when  bill  of  discovery  to  ascertain  time  of  defalcation  may  be 
brought  against  principal  and  different  sets  of  sureties 465 

■when  surety  on,  for  second  term  of  officer  liable  for  money  re- 
ceived by  him  during  first  term 466 

when  surety  for  last  term  of  officer  liable  for  previous  defalcation  467 

liability  of  surety  on,  when  officer  pays  defalcation  of  one  term 
with  money  received  during  another  term 468 

how  surety  on,  affected  if  duties  of  officer  afterwards  changed. . .  469 

when  surety  on,  liable  for  duties  afterwards  imposed  upon  officer  469 

liability  of  surety  on,  determined  by  reference  to  law  in  contem- 
plation when  he  signed 470 

when  surety  on,  liable  although  tenure  of  office  or  mode  of  ap- 

pointmeiit  of  officer  changed 471 

how  liability  of  surety  on,  affected  by  change  in  the  emoluments 
of  office,  etc 472 

when  general,  covers  special  fund  collected  or  received  by  officer  473 

regulations  requiring  periodical  accounts  from  officers  no  part  of 
contract  with  surety  on, 474 

surety  on,  of  one  officer  not  discharged  by  negligence  of  other 
officers 474 

surety  on,  not  discharged  by  violation  of  statute  enacted  for 
benefit  of  the  government 475 

surety  on,  of  one  officer  not  discharged  by  unauthorized  positive 
act  of  another  officer 476 

surety  on,  of  government  officer  liable  for  money  stolen  from  or 
otherwise  lost  by  him 477 

miscellaneous  cases  concerning  sureties  in  official  bonds 478 

liability  of  surety  on,  of  bank  clerk  or  cashier 479 

liability  of  surety  on,  of  justice  of  the  peace 480 

when  surety  on,  of  justice  of  the  peace  liable  for  money  received 

by  him 481 

how  surety  on,  of  justice  of  the  peace  affected  by  his  death 482 

surety  on,  of  sheriff  or  constable  liable  only  for  his  acts  within 
the  scope  of  his  authority  or  duty 483 

liability  of  surety  on,  of  sheriff  or  constable  for  his  act  in  seizing 
property 484 

measure  of  damages  for  breach  of  duty  of  sheriff  with  reference 
to  process 485 

liability  of  surety  on  sheriff's,  to  surety  for  debt  who  is  injured 
by  sheriff 's  acts 486 

sickness  of  constable  which  prevents  him  from  levying  an  execu- 
tion is  no  excuse  for  the  sureties  on  his, 487 

if  creditor  permit  constable  to  use  money  collected,  on  agree- 
ment to  pay  interest  surety  on  constable's,  not  liable  therefor  487 

miscellaneous  cases  a^  to  liability  of  surety  on,  of  sheriff  or  con- 
stable   487 

action  against  surety  on  sheriff 's 488 

liability  of  surety  on,  of  deputy  sheriff 489 


724  INDEX. 

OFFICIAL  BOl^Hi—Confinued.  ^^*^^ 

whether  joint  guardians  or  administrators  are  sureties  for  each 

other,  etc 490 

action  against  surety  on,  of  guardian 491 

discharge  of  surety  on,  of  guardian  by  order  of  court,  etc 492 

miscellaneous  cases  concerning  liability  of  surety  on,  of  guardian      492,  493 
whether  surety  on,  of  executor  or  administrator  liable  till  devas- 
tavit established  by  suit  against  principal 494,  495 

when  surety  on,  of  executor  or  administrator  concluded  by  settle- 
ment by,  or  judgment  against,  pnncipal 496 

liability  of  surety  on  first  and  second,  of  executor  or  adminis- 
trator   497 

liability  and  rights  of  surety  on,  of  two  executors  or  administra- 
tors when  one  dies  or  ceases  to  act 498 

surety  on,  of  administrator  not  liable  for  rents  nor  for  proceeds 

of  sale  of  real  estate 499 

surety  on,  of  administrator  only  liable  for  his  official  misconduct  500 
miscellaneous  cases  as  to  sureties  in,  of  executors  and  adminis- 
trators      501,  502 

how  far  judgment  against  sheriff  is  evidence  against  surety  on 

his 530 

how  far  judgment  against  guardian  evidence  against  surety  on 

his,     533 

when  judgment  against  administrator  conclusive  evidence  against 
surety  in  his 532 

ONE  DOLLAR— 

when  consideration  expressed  at,   it  cannot  be  shown  it  never 
was  paid 70 

ORDER— 

sufficient  memorandum  to  satisfy  the  statute  of  frauds 66 

ORIGINAL— 

when  promise  is,  within  the  statute  of  frauds 63 

OUTER  DOOR— 

bail  in  civil  case  may  break,  to  arrest  principal 427 

OVERDUE— 

fact  that  note  is,  no  notice  that  one  of  the  makers  is  surety 20 

OVERDUE  NOTE— 

guaranty  of  payment  of  "  when  due  "  valid 89 

PAROL  AGREEMENT— 

whether,  for  giving  time  discharges  surety  on  specialty 327 

when,  completely  executed  supersedes  specialty 336 

PAROL  EVIDENCE— 

competent  to  show  that  joint  maker  of  note  is  surety 17 

competent  to  show  that  one  of  several  joint  obligors  is  surety 18 

when  there  is  ambiguity  as  to  consideration  it  may  be  explained  by,  72 


INDEX.  725 

Section 
PAROL  EYWE^CE— Continued. 

competent  to  show  that  guaranty  addressed  to  a  bank  president 

was  intended  for  the  bank 97 

admissible  to  explain  ambiguity  in  guaranty 130 

competent  to  show  true  liability  of  blank  indorser 153 

competent  in  suit  for  indemnity  to  show  who  is  principal  on  note  198 

competent  to  show  true  relation  between  various  sureties  for  debt  226 
competent  to  show  agreement  upon  which  security  for  extended 

time  was  taken 318  to  320 

competent  to  show  the  terms  upon  which  surety  signed 352 

not  competent  to  show  that  bail  surrendered  principal  during  ses- 
sion of  court 426 

PARDON— 

of  principal  discharges  bail,  when 436 

PART  PAYMENT— 

of  debt  when  sufficient  consideration  for  giving  time 306 

PARTNER— 

cannot  usually  bind  firm  as  surety 10 

may  bind  firm  as  surety  within  scope  of  firm  business 10 

when  retiring,  becomes  surety  of  remaining  partners  for  firm 

debts 23 

verbal  promise  of  one,  to  pay  partnership  debt  not  within  the 

statute  of  frauds 54 

promise  by  firm  to  pay  debt  of  individual,  within  the  statute  of 

frauds 54 

when  surety  of  one,  entitled  to  recover  indemnity  from  the  firm  186 

partners  may  maintain  a  joint  action  on  a  guaranty  given  to  one 

of  them  for  the  benefit  of  all 96 

PARTNERSHIP— 

surety  for  one  not  liable  for,  of  which  such  one  is  a  member 98 

guarantor  for  goods  to  be  sold  a,  not  liable  for  goods  sold  after 

partners  changed 98 

change  in  membership  of,  discharges  surety  to  or  for,   from 

future  Liability 99 

when  obligation  given  to,  binds  surety  after  change  in  members  of,  101 

PARTIES— 

when  mortgagee  who  guaranties  debt  is  a  proper  party  to  a  suit 

to  foreclose  the  mortgage 116 

principal  necessary  party  to  suit  in  chancery  [against  surety  on 

lost  note 218 

two  sureties  who  have  paid  the  debt  of  the  principal  may  join  m 

an  action  for  subrogation 280 

who  necessary,  to  bill  for  contribution 256 

PAST  ADVANCES— 

when  guaranty  covers 109  rt 

PAUPER— 

payment  of  rent  by  a  surety  entitles,  to  a  settlement Ill 


726  INDEX. 

Sectiov 
PAYEE- 

liability  of  surety  on  note  when  it  is  discounted  by  party  other 
than  the, 94,  95 

PAYMENT— see  APPLICATION  OF  PAYMENTS. 

what  presumption  arises  concerning  suretyship  from,  by  certain 

parties 20 

of  instahnents  for  work  faster  than  due  discharges  surety  for 
completion  of  work 102 

by  surety  by  his  own  note  is  sufficient  to  charge  indemnitor  of 

surety 106 

liability  of  surety  who  is  discharged  not  revived  by,  with  money 
of  principal. 119 

when  demand  of,  on  principal  necessary  to  charge  guarantor.  • .  169 

when  demand  of,  on  principal  not  necessaiy  to  charge  guarantor  170 

surety  may  make,  of  debt  before  due  and  recover  indemnity  after 
due 176 

cause  of  action  by  surety  against  principal  accrues  upon,  of  the 
debt 176 

surety  may  make,  by  instalments  and  sue  principal  for  every 
payment 177 

surety  who  makes,  in  any  manner  may  sue  principal  for  indem- 
nity in  assumpsit 178 

surety  who  makes,  by  his  own  note  may  at  once  sue  principal  for 

indemnity 181 

when  possession  of  note  by  surety  is  evidence  that  he  has  paid  it  181 

of  less  than  full  amount  by  surety  only  entitles  him  to  recover 
from  principal  value  of, 182 

when  surety  can  and  when  he  cannot  by  express  contract  recover 

indemnity  from  principal  before,  of  the  debt 190,  191 

surety  may  by  bill  in  chancery  compel,  of  debt  by  principal  be- 
fore himself  paying  it 192 

when  surety  has  remedy  in  equity  to  prevent  injury  to  liimself 

before,  of  debt ■• 193 

surety  who  makes,  with  fiill  knowledge  of  facts  which  will  dis- 
charge him  cannot  recover  money  back 217 

when  equity  affords  remedy  to  surety  against  co-surety  before, 
of  the  debt 289 

of  judgment  by  surety  does  not  extinguish  it  and  he  may  after- 
wards prosecute  creditor's  bill  on  it 239,  243 

surety  who  makes,  by  his  own  note  may  recover  contribution 249 

when  surety  makes,  in  land  what  contribution  he  may  recover. ..  250 

of  debt  in  any  manner  entitles  surety  to  subrogation 261 

surety  not  entitled  to  subrogation  until,  of  the  whole  debt '.  266 

of  debt  by  surety  does  not  extinguish  it  so  as  to  prevent  subro- 
gation  264,  270,  274 

whether,  of  judgment  by  surety  extinguishes  it  so  as  to  prevent 

subrogation  thereto 270  to  272 

whether,  by  surety  of  specialty  debt  of  principal  extinguishes  it 

so  as  to  prevent  subrogation 273 


INDEX.  727 

„  Section 

PA  YMENT— Conf !«  ued. 

liow,  made  by  principal  should  be  applied 286 

discharge  of  surety  by, • 286  to  295 

how  the  law  will  apply, 287 

when  note  of  surety  amounts  to,  under  bankrupt  act 288 

amount  paid  creditor  by  surety  to  procure  his  release  cannot  be 

applied  as,  on  the  debt 288 

what  will  amount  to ;  instances 288 

if  debt  once  paid  it  cannot  be  revived  against  surety 289 

when,  made  by  principal  and  accepted  by  creditor  does  not  dis- 
charge surety 290 

funds  which  have  be^n  appropriated  by  principal  for,  of  the  debt 

cannot  be  diverted  from  that  purpose 291 

of  debt  by  principal  discharges  surety,  no  matter  where  money 

came  from 292 

cases  holding  surety  discharged  by,  under  peculiar  circumstances  293 

how,  by  officer  applied  when  he  has  two  sets  of  sureties 294 

of  interest  in  advance  by  principal  debtor  discharges  surety, 

when 305 

of  debt  by  surety  in  forthcoming  bond  does  not  entitle  him  to  re- 
cover amount  from  principal 406 

liability  of  surety  on  official  bond  when  officer  makes  payment  of 
defalcation  of  one  term  with  money  received  during  another 
term 468 

PENALTY— 

surety  on  note  liable  to,  for  usury  paid  by  principal 92 

when  surety  liable  beyond  the,  of  his  bond 93 

whether  surety  on  official  bond  liable  for,  incurred  by  officer 456 

PENCIL— 

memorandum  to  satisfy  statute  of  frauds  may  be  written  with. . .  66 

PLEDGE— 

property  pledged  for  debt  of  another  occupies  position  of  surety  21 

if  creditor  negligently  lose  property  pledged  by  principal  for 
payment  of  debt  surety  discharged 386 

PLEADING— 

in  cases  within  the  statute  of  frauds 77 

g'feneral  allegation  of  notice  is  sufficient  in, 174 

whether,    must,  allege  that    statutory  notice    to   sue   was    in 

writing 617 

discharge  of  surety  by  statutory  notice  must  be  specially  pleaded  517 

when  no,  required  under  statute  to  bring  question  of  suretyship 
before  the  court 617 

POSSESSION— 

■when  of  note  by  surety  is  evidence  that  he  has  paid  it 181 

POSTMASTER— 

surety  on  official  bond  of,  liable  for  increased  rate  of  postage 
afterwards  imposed 469 


728  INDEX. 

Section 
PKESUMPTION— 

what,  arises  as  to  fact  of  suretyship  by  payments  made  by  cer- 
tain parties 20 

is  that  the  signature  to  a  guaranty  was  written  at  the  same 
time  as  the  guaranty 89 

is  that  common  money  bond  is  given  to  secure  an  existing  debt 

and  not  future  advances 107 

as  to  time  when  indorsement  was  made 147,  149 

is  that  default  occun-ed  during  last  term  when  ofBcer  has  held 

several  terms  and  made  default 467 

is  that  the  sheriff  made  the  money  before  the  return  day  on  an 

execution  placed  in  his  hands 485 

what,  arises  from  non-payment  by  the  principal 535 

PRINCIPAI^ 

when  party  signing  as  surety  may  be  shown  to  be, 17 

stockholder  of  corporation  liable  for  its  debt  is, 26 

when  by  subsequent  dealings  surety  becomes, 26 

surety  who  binds  himself  in  terms  as,  not  entitled  to  rights  of 

surety 28 

surety  is  bound  to  ascertain  his, 108 

surety  becomes,  when  he  receives  amount  of  debt  from  principal 

and  agrees  to  pay  it 109  n 

there  is  an  implied  promise  by,  to  indemnify  surety 176 

creditor  will  on  application  of  surety  compel,  to  pay  debt 192 

miscellaneous  case  as  to  rights  of  surety  against, 218,  219 

surety  who  becomes,  liable  for  whole  amount  paid  by  former  co- 
surety   231 

PROHIBITION  OF  STATUTE— 

surety  bound  if  received  contrary  to,  if  statute  only  directory. ..  4 

against  act  of  principal  prevents  surety  from  becoming  liable. . .  11 

PROMISE  TO  PAY— 

by  surety  after  time  given 300 

PROOF— 

of  notice  how  it  may  be  made 175 

PROPERTY— 

pledged  or  mortgaged  for  debt  of  another  occupies  position  of 

suret  y 21 

surety  who  pays  with,  may  at  once  sue  principal  for  indemnity. .  181 

PROPORTIONS— 

in  what,  co-sureties  are  liable  to  contribute 252 

PROTEST  FEES- 

guarantor  of  note  is  not  liable  for, 106 

PURCHASE— 

when  transaction   amounts   to,  of  debt   or  lien   by   promisor, 
promise  not  within  statute  of  frauds 51 


DTOEX.  729 

Section 
PURCHASE  MONEY— 

surety  for,  of  land  cannot  resist  payment  because  grantor  fails  to 

pay  a  prior  incumbrance 363 

RAILROAD  COMPANY— 

may  guaranty  bonds  of  counties  and  cities,  when 3 

surety  of  clerk  of,  liable  after  consolidation  of,  with  another,  when  101 

RATIFICATION— 

of  contract  by  surety  after  it  is  altered  prevents  his  discharge. . .  33'^ 

READING— 

negligence  of  surety  in  not,  bond  cuts  him  off  from  relief,  when  107 

REASONABLE  TIME— 

what  is  the,  within  which  notice  must  be  given  guarantor 174 

RECEIPT— 

sufficient  memorandum  to  satisfy  the  statute  of  frauds 66 

RECITALS— 

surety  generally  estopped  by,  of  obligation  signed  by  hiui 29  to  31,  536 

when  surety  not  estopped  by,  of  obligation  signed  by  him 81,  32 

of  instrument  signed  by  surety  do  not  estop  him  from  showing 

that  the  instrument  is  not  his  deed  or  is  void 32 

of  existence  of  court  do  not  estop  surety  to  deny  the  fact 32 

surety  not  estopped  to  deny,  when  it  is  an  allegation  coming 

from  the  other  side 32 

of  an  obligation  limit  the  general  words  thereof 138 

RECOGNIZANCE— 

when  it  binds  surety  if  it  does  not  bind  principal 127 

RECORDING  MORTGAGE— 

when  surety  discharged  byneghgence  of  creditor  in,  for  security 
of  the  debt 389 

REFORMATION  OF  CONTRACT— 

when  equity  will  reform  contract  against  surety 118 

RELEASE— 

of  principal  usually  discharges  surety 122 

of  levy  on  property  of  principal  discharges  surety,  when 378  to  380 

of  attachment  on  property  of  principal  discharges  surety,  when  381 

how,  of  co-surety  atfects  liability  of  surety 383 

RELINQUISHMENT— 

by  creditor  of  lien  on  property  of  principal  discharges  surety  pro 

taido 370  to  372 

by  creditor  of  lien  on  property  of  principal  wholly  discharges 

surety,  when 373 

of  property  of  principal  in  hands  of  creditor  does  not  discharge 

surety  if  creditor  have  no  lien  thereon 374 

of  lien  by  creditor  on  property  of  principal  does  not  discharge 

surety,  when 375 


730  INDEX. 

Skction 
RELINQUISHMENT— Co»<mMetZ. 

when  of,  levy  on  property  of  principal  discharges  surety 378  to  380 

REMEDY— 

prohibition  of  the  statute  of  frauds  is  against  the,  only 38 

is  always  governed  by  law  of  country  where  action  brought. ...  38 

if  there  is  no,  against  a  third  person  promise  not  withm  sta  ute 

of  frauds 42 

when  surety  has,  in  equity  to  secure  himself  before  paying  debt  193 

surety  who  becomes  bound  during  course  of,  against  principal 

not  co-surety  with  original  surety 227 

surety  who  becomes  such  during  "prosecution  of,  against  princi- 

cipal  not  entitled  to  subrogation 268 

reservation  of,  by  creditor  against  surety  prevents  discharge  of 

surety  by  time  given  the  principal 329 

RENT— 

when  surety  for,  liable  for  extended  term  if  principal  hold  over. .  90 

surety  for,  not  discharged  by  fact  that  building  is  burned  and 

landlord  gets  insurance 90 

guarantor  of,  payable  by  instalments  may  be  sued  when  each 

instalment  becomes  due 106 

guarantor  of,  to  come  due  not  entitled  to  notice  of  principal's 

default 172 

when  change  in  amount  of,  does  not  discharge  surety  on  lease  339 

surety  in  official  bond  of  administrator  not  liable  for, 499 

REPLEVIN  BOND— 

when  surety  in,  discharged  by  reference  of  replevin  suit  to  arbi- 
tration    416 

when  surety  in,  bound  for  money  judgment  against  principal. ...  417 

surety  in,  not  discharged  because  suit  transferred  from  one  court 

to  another 418 

whether  surety  in,  discharged  if  defendant  in  replevin  suit  changed  418 

surety  in,  not  liable  when  return  of  property  rendered  impossible 

by  act  of  law 419 

miscellaneous  cases  concerning  sureties  in, 420 

REPRESENTATION— 

of  principal  binds  surety,  when 103 

REQUEST— 

surety  who  becomes  such  without  any,  by  principal  cannot  re- 
cover indemnity 180 

REQUEST  TO  SUE— 

whether  surety  discharged  if  creditor  does  not  sue  principal  on 

request 206  to  208 

requisites  of, 207 

RESERVATION  OF  REMEDIES— 

against  surety  prevents  release  of   principal  from  discharging 
surety 123 


INDEX.  731 

Section 
RESERVATION  OF  REMEDIES— CoMimwei. 

by  creditor  against  surety  where  time  is  given  principal  must  be 
in  explicit  terms 329 

by  creditor  against  surety  prevents  discharge  of  surety  by  time 

given  the  principal 329 

RES  GEST^— 

when  declarations  of  principal  are  part  of,  they  are  evidence 

against  surety 521 

RESIDENT— 

where  statute  provides  that  bail  shall  be  of  state,  non-resident 
who  is  received  as  bail  is  bound 4 

RESPONSIBILITY— 

when  surety  discharged  if,  of  principal  varied 343 

RETROSPECTIVE  OPERATION— 

guaranty  may  have  when  so  intended  by  the  parties 107 

RETURN— 

of  sheriff  on  execution  sufficient  memorandum  to  satisfy  the 

statute  of  frauds 66 

by  sheriff  on  execution  of  receipt  of  money  conclusive  against 

sureties  in  his  official  bond 487,  522 

RETURNS— 

how  far,  made  by  pubUc  officer  are  evidence  against  his  surety. .  522 

REVENUE— 

how  surety  of  collector  of  affected  by  giving  time 324 

REVOCATION— 

when  there  may  be,  of  guaranty  before  the  time  for  which  it  was 

given  expires 114 

of  guaranty  by  death  of  guarantor 113,  114 

doubtful  expressions   in    subsequent  correspondence    will    not 

amount  to,  of  guaranty 114 

RISK— 

act  of  creditor  which  increases  surety's,  must  be  unlawful  to  dis 
charge  surety 200 


SALARY— 

when  change  in,  of  principal  discharges  surety 341 

SALE— 

surety  for  what  may  remain  due  after,  of  property  not  liable  till 
completed,  made 112 

SEAL— 

obligation  of  surety  under,  does  not  extinguish  simple  contract 

debt  of  principal 215 

statutoiy  bond  must  be  under,  in  order  to  bind  surety 442 


732  INDEX. 

Section 
SEALING— 

■whether  it  is  a  sufficient  signature  to  satisfy  the  statute  of  frauds  75 

SEALED  INSTRUMENT— 

joiut  maker  of,  may  be  shown  by  parol  evidence  to  be  surety 
when  instrument  is  silent  on  the  subject 18 

SECURITIES— 

creditor  not  bound  to  exhaust,  put  up  by  creditor  before  suing 

surety 204 

when  surety  before  paying  may  enforce,  for  the  debt 204 

when  creditor  entitled  to,  given  by  principal  to  surety  for  his  in- 
demnity  282  to  285 

deposited  with  creditor  for  payment  of  the  debt  cannot  be  divert- 
ed from  that  purpose 291 

if  by  act  of  creditor,  for  payment  of  debt  are  lost  or  rendered  un- 
availing, surety  is  discharged  pro  tanto 370  to  372 

when  surety  wholly  discharged  if  creditor  relinquish,  for  the  debt  373 

rehnquishment  by  creditor  of,  on  property  of  principal  does  not 

discharge  surety  when 375 

negligent  loss  of,  by  creditor  discharges  surety 384  to  386 

instances  of  discharge  of  surety  by  neglect  of  creditor  to  pre- 
serve or  perfect  securities 387 

SET-OFF— 

when  payment  by  surety  of  principal's  debt  may  be,  by  surety. .  195 

whether  surety  in  suit  by  creditor  against  him  can  avail  himself 

of,  in  favor  of  principal 203 

surety  cannot  in  suit  for  contribution,  against  co-surety  debt  due 

plaintiff  by  principal 245 

when  creditor  not  bound  to,  debt  due  him  by  principal 374 

SETTLEMENT— 

payment  of  rent  by  a  surety  entitles  pauper  to  a Ill 

when,  by  executor  or  administrator  conclusive  against  surety  on 
his  official  bond 498 

SHERIFF— 

subrogation  of  sureties  of, 277 

surety  on  official  bond  of,  liable  for  money  collected  by  him  even 

though  judgment  and  execution  are  irregular 448 

surety  on  official  bond  of,  not  liable  for  costs  of  advertising 454 

if  goods  are  sold  by,  in  a  manner  unknown  to  law  by  agreement 

between  parties,  sheriff's  sureties  not  liable  for  his  acts 457 

when  surety  on  official  bond  of,  liable  for  acts  done  by  him  after 

termination  of  his  office 458 

surety  on  official  bond  of,  liable  only  for  his  acts  within  the  scope 

of  his  authority  or  duty 483 

liability  of  surety  on  official  bond  of,  for  his  act  in  seizing  property  484 

measure  of  damages  for  breach  of  duty  of,  with  reference  to  process  485 

liability  of  surety  on  official  bond  of,  to  surety  for  debt  who  is 

injured  by  acts  of, 486 


INDEX.  733 

Section 
SHERIFF—  Continued. 

miscellaneous  cases  as  to  liability  of  surety  on  official  bond  of. .  487 

action  against  surety  on  official  bond  of, 488 

how  far  judgment  against,  is  evidence  against  surety  on  his 

official  bond 530 

when  judgment  against  sheriff  evidence  against  surety  on  bond 

of  indenmity  to, 531 

SICKNESS— 

when,  of  principal  excuses  bail 428 

of  constable  which  prevents  him  from  levying  an  execution  is  no 
excuse  for  the  sureties  on  his  official  bond 487 

SIGNATURE— 

by  party  to  be  charged  only,  necessary  to  satisfy  statute  of  frauds  75 
to  memorandum  to  satisfy  statute  of  frauds  may  be  on  any  part 

of  writing 75 

what  is  sufficient,  by  party  to  be  charged  to  satisfy  statute  of 

frauds 75 

by  agent  sufficient  to  satisfy  the  statute  of  frauds 76 

when  principal  does  not  sign  obligation  whether  surety  bound. .  127 

when  surety  discharged  because,  of  another  surety  is  forged. . . .  358 

SOLE  MAKER— 

of  obligation  when  he  occupies  the  position  of  a  surety 25 

SOLVENCY— 

of  principal  makes  no  difference  with  reference  to  statutoiy  no- 
tice to  sue 511 

SPECIAL  PROMISE— 

meaning  of  the  words,  in  the  statute  of  frauds 39 

SPECIFIC  PERFORMANCE— 

surety  for  conveyance  of  land  not  liable  for, 105 

when  surety  entitled  to  subrogation  to  right  to  file  bUl  for, 280 

SPECIALTY— 

whether  surety  on,  discharged  by  parol  agreement  for  extension  327 

SPECIALTY  DEBT— 

whether  surety  who  pays,  is  entitled  to  rank  as  specialty  creditor  273 

STAMP— 

surety  on  voluntary  bond  not  discharged  for  want  of,  on  instni- 
ment  signed  by  him 108 

STATE— 

laches  cannot  be  imputed  to  the, 474 

STATUTE— 

when  enactment  of,   allowing  damages  after  surety  in  appeal 

bond  signs  does  not  discharge  him 397 

STATUTE  OF  FRAUDS-see  FRAUDS,  STATUTE  OF. 

STATUTE  OF  LIMITATIONS— see  LIMITATIONS,  STATUTE  OF. 


734  ENDEX. 

Section 
STATUTORY  BOND— 

bond  which  is  in  substance  and  legal  effect  the  same  as  required 

by  statute  is, 442 

does  not  bind  sureties  unless  it  is  under  seal 442 

STATUTES  RELATING  TO  SURETIES— 

right  of  sureties  and  guarantors  under,  other  than  the  statute  of 

frauds 503  to  517 

who  entitled  to  avail  themselves  of, 503 

what  notice  to  sue  sufficient 504 

to  whom  the  notice  to  sue  must  be  given 505 

against  whom  suit  should  be  brought  when  notice  is  given 506 

as  to  the  diligence  to  be  used  in  prosecuting  suit  when  notice  is 

given 507 

waiver  of  written  notice  to  sue 503 

how  fact  that  surety  is  indemnified  affects  his  right  to  require 

creditor  to  sue 509 

how  death  of  principal  affects  rights  of  surety  under  statute 510 

solvency  of  principal  makes  no  difference  with  reference  to  stat- 
utory notice  to  sue 511 

how  discharge  of  one  surety  by  statutoiy  notice  to  sue  affects 

other  sureties 512 

miscellaneous  cases  as  to  statutory  notice  by  surety  to  creditor 

requiring  him  to  sue 513 

constitutionality  of  statutes  providing  summary  remedies  in  case 

of  sureties '. 514 

construction  of  statutes  affording  summary  remedies  in  case  of 

sureties 515 

STAY  BOND— 

liabiUty  of  surety  on, 421 

STAY  OF  EXECUTION— 

when,  amounts  to  giving  time  and  discharges  surety 325,  826 

when  surety  in  appeal  bond  liable  after  there  has  been,  against 
principal 399 

STOCKHOLDERS  OF  CORPORATION— 

liable  for  its  debts  are  not  its  sureties 26 

promise  by,  to  pay  its  debts  is  within  the  statute  of  frauds 54 

STOLEN— 

surety  on  official  bond  of  government  officer  liable  for  money 
stolen  from  him 477 

STRANGER— 

to  note,  who  indorses  it  in  blank  liable,  how 147,  143 

SUBROGATION— 

original  surety  entitled  to  as  against  surety  who  comes  in  during 

course  of  remedy  against  principal 227,  268 

surety  who  pays  the  debt  is  entitled  to, 260 

right  to,  does  not  depend  on  contract 260 


1 


INDEX.  736 

Section 
SUBROGATION— CoMimMecZ. 

is  a  doctrine  of  equity  and  cannot  be  enforced  at  law 260 

surety  not  entitled  to,  till  he  pays  the  debt 261 

right  of  surety  to,  extends  to  securities  obtained  by  creditor  ■mth- 

out  his  knowledge 261 

if  creditor  render  unavailing  surety's  right  to,  he  is  discharged  261 

surety  may  waive  right  to 261 

any  one  who  occupies  the  position  of  surety  or  guarantor  is  en- 
titled to 262 

surety  may  enforce,  by  suitin  chancery 263 

creditor  after  he  is  paid  cannot  interfere  to  prevent, 263 

of  surety  to  rights  of  creditor  in  suits  commenced  for  recovery  of 

the  debt 264 

will  not  be  allowed  when  it  is  inequitable  or  will  prejudice  cred- 
itor's rights 265 

surety  is  not  entitled  to,  until  the  whole  debt  is  paid 266 

whether  right  to,  barred  by  taking  separate  indemnity 267 

surety  not  entitled  to,  after  statute  of  limitations  has  run 267 

surety  who  pays  entitled  to,  as  against  co-surety 269 

of  surety  who  pays  judgment  against  principal 270  to  272 

whether  surety  who  pays   specialty  debt  of  principal  is  entitled 

to  rank  as  specialty  creditor 273 

surety  entitled  to,  to  all   securities  held  by  creditor  ;  general 

observations  ;  English   statute 274 

of  surety  to  mortgage  given  by  principal  for  security  of  the  debt  275 
surety  cannot  by  means  of,  occupy  any  better  position  than  cred- 
itor   276 

equity  will  not  marshal  assets  so  as  to  destroy  sureties  right  to,  276 

indemnitor  of  surety  entitled  to, 276 

will  be  enforced  against  third  parties  with  notice 276 

of  sheriff's  sureties 277 

of  sureties  of  administrator  and  of  county  and  city  treasurer 278 

surety  for  part  of  debt  no  right  to  subrogation  to  securities  for 

another  part  of  same  debt 279 

miscellaneous  case  with  reference  to, 279  to  281 

when  surety  entitled  to,  to  creditor's  right  to  set  aside  fraudulent 

conveyances  by  principal 280 

when  surety  entitled  to,  as  against  special  bail 281 

when  creditor  entitled  to  securities  given  by  principal  to  surety 

for  his  indemnity 282  to  285 

creditor  cannot  avail  himself  of  personal  indemnity  given  surety 

unless  surety  could  have  done  so 284 

surety  not  entitled  to,  to  personal  indemnity  of  surety  after 

surety  is  discharged 285 

SUIT— see  ACTION. 

SUMMARY  REMEDIES— 

constitutionality  of  statutes  providing,  in  case  of  sureties 514 

construction  of  statutes  affording,  in  case  of  sureties 515 


7^0  INDEX. 

Section 
SUNDAY— 

bond  signed  on,  by  surety  but  delivered  on  Monday  binds  him. .  14 

agreement  for  extension  made  on,  valid  if  consideration  paid  on 

week  day 308 

bail  may  arrest  principal  on 427 

SURETY— see  LIABILITY  OF  SURETY. 

definition  of 1 

difference  between,  and  guarantor -       1 

party  signing  as,  when  it  may  be  shown  that  he  is  principal. ...  17 
may  show  fact  of  suretyship  and  creditor's  knowledge  by  parol 

where  instrument  is  silent  on  the  subject 17 

entitled  to  all  the  rights  of  surety  from  the  time  creditor  knew 

of  suretyship 17  to  19 

property  pledged  or  mortgaged  for  debt  of  another  occupies  po- 
sition of, 21 

property  of  wife  mortgaged  for  debt  of  husband  occupies  posi- 
tion of, 22 

when  retiring  member  of  firm  becomes,  of  other  partners  for  firm 

debts 23 

vendor  of  land  who  sells  it  subject  to  mortgage  becomes,  for 

mortgage  debt 24 

when  one  of  two  joint  administrators  surety  for  the  other 25 

when  sole  maker  of  instrument  is, 25 

when  two  signers  of  note  each  receive  one-half  of  consideration, 

each  surety  for  the  other  one  half 25 

when  one  joint  obligor  is,  for  another  joint  obligor 25 

when  by  subsequent  dealings,  becomes  principal 26 

stockholder  of  corporation  liable  for  its  debts  not  its  surety  ....  26 
when  parties  who  exchange  notes  with  each  other  are  not  sure- 
ties for  each  other 26 

entitled  to  same  rights  after  judgment  as  before 27 

who  binds  himself  as  principal  not  entitled  to  rights  of  surety. .  28 

obligation  of,  cannot  be  sold  separate  from  that  of  principal. ...  36 

favorite  in  law  and  not  bound  beyond  strict  terms  of  contract. . .  79 
property  of,  may  be  first  taken  on  execution  against  him  and 

principal 82 

when  concluded  by  result  of  litigation  between  other  parties  ....  91 

for  one  not  liable  for  several 98 

for  several  not  liable  for  one 93 

for  the  acts  of  one  person  liable  if  such  acts  performed  by  him 

and  a  partner,  when 100 

to  firm  liable  after  change  in  membership  of  firm,  when 101 

is  not  liable  beyond  the  scope  of  his  obligation  ;  instances 102 

will  not  be  charged  to  exonerate  estate  of  principal 105 

not  liable  for  a  greater  sum  than  principal 107 

who  signs  without  knowledge  of  principal  is  bound 107 

on  assignee's  bond  not  liable  to  those  who  defeat  the  assignment  108 
becomes  principal  when  he  receives  amount  of  debt  from  prin- 
cipal and  agrees  to  pay  it 109n 


INDEX.  737 

Section 
SURETY— Co7itinued. 

generally  not  liable  to  any  greater  extent  than  principal 121 

discharge  of  principal  usually  releases, 122 

when  not  released  because  principal  not  bound 124 

when  cause  of  action  by,  against  principal  for  indemnity  arises  176 

may  before  paying  debt  file  bill  to  compel  principal  to  pay  it 192 

when,  may  have  relief  in  equity  before  paying  the  debt 193 

not  discharged  by  lawful  act  of  creditor  even  though  injured. . .  200 
may  be  sued  before  creditor  resorts  to  any  other  security  for  the 

debt 204 

may  by  suit  in  equity  compel  creditor  to  proceed  against  principal  205 
whether,  can  by  request  alone  compel  creditor  to  sue  principal. .  206  to  208 
party  who  is  indebted  may  lawfully  as  against  liis  creditors  be- 
come, for  another 217 

miscellaneous  cases,  as  to  rights  of,  against  principal 218,  219 

bail  in  civil  suit  generally  entitled  to  rights  of, 425 

when  entitled  to  benefit  of  indemnity  obtained  by  co-surety 233  to  237 

when  equity  will  afford,  relief  against  co-surety  before  payment 

of  the  debt 289 

who  becomes  such  during  prosecution  of  remedy  against  princi- 
pal is  not  entitled  to  subrogation 268 

if  debt  once  paid  it  cannot  be  revived  against, 289 

is  discharged  by  time  given  the  principal 296 

SURETY  OF  SURETY— 

not  liable  to  contribution  at  suit  of  party  for  whom  he  is  surety  230 

SURETYSHIP— 

origin  and  requisites  of  contract  of 2 

if  it  does  not  appear  from  the  instrument  may  be  shown  by  parol 
when 17  to  19 

knowledge  of,  no  matter  when  obtained  by  creditor,  entitles 

surety  from  that  time  to  all  the  rights  of  a  surety 19 

SURPLUSAGE— 

unnecessary  allegation  of  notice  in  pleading  may  be  treated  as, . .  174 

SURRENDER— 

of  principal  discharges  bail 426 

SURROUNDING  CIRCUMSTANCES— 

evidence  of,  admissible  in  construing  guaranty 130 


TAX  COLLECTOR— 

liability  of  surety  on  bond  of, 447 

sm-ety  of  not  liable  for  costs  of  advertising  property  for  taxes. . .  454 

TAXES— 

how  surety  of  collector  of,  affected  by  giving  time 824 

TELEGRAPHIC  MESSAGE— 

signature  to  instructions  for,  sufiicient  to  satisfy  statute  of  frauds  75 

47 


738  INDEX. 

Sectiow 
TENDER— 

by  principal  to  creditor  of  amount  of  debt  discbarges  surety. . . .  295 

TENURE  OF  OFFICE— 

wben  cbange  in,  of  principal  releases  surety 142 

TERM  OF  COURT— 

not  holding,  to  wbicb  accused  is  recognized  to  appear  does  not 
discbarge  bail 433 

TERM  OF  OFFICE— 

when  surety  in  sheriff 's  official  bond  liable  for  acts  done  by  him 
after  expiration  of  his, 459 

cases  holding  surety  in  official  bond  liable  for  acts  of  officer  af- 
ter expiration  of  his, 459 

cases  holding  surety  in  official  bond  not  liable  for  acts  of  officer 
after  expiration  of  bis, 460 

TERMS— 

miscellaneous  cases  holding  surety  discharged  by  non-compliance 
witb,  upon  which  be  signed 361 

THIRD  PERSONS— 

rights  of  surety  against,  with  reference  to  indemmity 213 

principal  may  before  debt  is  due  COTifess  judgment  for  surety's 
indemnity  which  will  be  valid  against, 213 

surety  to  whom  chattel  is  mortgaged  for  indemnity  may  maintain 
trover  against,  for  taking  it 213 

surety  cannot   recover  indemnity  from,  who  have  agreed  with 

principal  to  f>ay  the  debt 217 

party  who  is  indebted  may  lawfully  as  against  his  creditors  be- 
come surety  for  another 217 

subrogation  will  be  enforced  against,  with  notice 276 

false  representaticajs  of,  do  not  discharge  surety,  when 360 

TIME,  EXTENSION  OF— see  GIVING  TIME. 

TORT— 

of  principal  included  within  the  statute  of  frauds 40 

surety  cannot  recover  indemnity  from  principal  by  an  action  in,  178 

TREASURER— 

sureties  of,  not  bound  after  tenure  c£  office  changed 142 

hability  of  surety  of,  when  money  deposited  with  him  was  ille- 
gally obtained 446 

surety  on  bond  of  state,  liable  for  money  or  property  received  by 
him  although  not  audited 447 

surety  on  official  bond  of,  liable  for  interest  on  puWic  money  re- 
ceived by  him 455 

surety  on  official  bond  of,  of  railway  company  not  liable  for 
money  lost  by  failure  of  bank,  when 477 

surety  on  official  bond  of  township,  liable  for  money  accidentally 
destroyed  by  fire 477 


INDEX.  739 

Section 
TRESPASS— 

surety  in  indemnifying  bond  to  eheriff  liable  in,  for  taking  of 

property 423 

whether  surety  in  official  bond  of  sheriff  or  constable  liable  for 
his,  in  seizing  property 484 

TROVER— 

surety  may  maintain,  for  chattel  mortgaged  for  his  indemnity. . 

TRUST— 

created  for  indemnity  of  surety  "without  his  knowledge  may  be 
adopted  and  enfored  by  him 190,  218 

TRUST  DEED— 

when  taking  principal's,  for  extended  period  amounts  to  giving 
time 317 

TRUSTEE— 

creditor  who  holds  lien  on  property  of  principal  for  payment  of 

debt  is,  thereof  for  surety 370 

where  creditor  not  chargeable  as,  of  property  of  principal  in  his 

possession,  surety  is  not  discharged  if  he  relinquish  it 374 

creditor  is,  of  secureties  in  his  hands  and  surety  is  discharged  if 

he  negligently  lose  them 384  to  386 

USAGE— 

when  surety  will  be  presumed  to  know,  of  bank 299 

of  bank  to  regard  all  signers  of  notes  as  principals  affects  surety 
when  time  is  given,  how 312 

UNDERSTANDING— 

of  party  to  whom  guaranty  is  addressed  may  be  shown  when  80 

UNEXECUTED  INTENTION— 

misrepresentation  of,  does  not  discharge  surety 351 

USURY— 

surety  liable  to  penalty  for  payment  of,  when  payment  made  by 

principal - 92 

guarantor  of  note  void  for,  not  bound,  when 107 

how  right  of  surety  to  indemnity  is  affected  by  fact  that  debt  is 

tainted  with, •  185 

surety  may  avail  himself  of  defense  of,  to  the  same  extent  that 

principal  can 202 

when  payment  which  is  void  for,  will  not  discharge  surety *  590 

agreement  to  pay,  is  not  a  sufficient  consideration  for  giving 

time 309 

whether  payment  of,   is  a  sufficient  consideration  for  giving 

time 309,  310 

concealment  of  fact  of,  affects  liability  of  surety,  how 363 

USURIOUS— 

when  sale  of  one's  credit  as  guarantor  is  not 81 


740  INDEX. 


Section 


VALUE  RECEIVED— 

these  words  are  a  sufficient  expression  of  consideration  to  satisfy 

statute  of  frauds 70 

VARIATION— see  ALTERATION. 

VENDOR— 

of  note  impliedly  guaranties  that  note  is  what  it  purports  to  be  16 

of  land  who  sells  it  subject  to  mortg-age  becomes  surety  for 
mortgage  debt 24 

VENDOR'S  LIEN— 

subrogation  of  surety  to, 276 

VENUE,  CHANGE  OF— 

in  a  criminal  case  does  not  discharge  bail  for  the  accused 433 

VERBAL  GUARANTOR— 

who  pays  debt  may  recover  indemnity 196 

fOID— 
when  guarantor  of  void  certificate  of  deposit  is  liable 89 

where  obligation  of  principal  is,  that  of  sm-ety  generally  is, ... .  121 

VOID  NOTE- 

surety  on,  for  purchase  of  horse  not  liable  for  anything 108 

VOLUNTARY  BOND— 

variant  from  statutory  form  binds  surety  even  if  statutory  bond 

required 12 

binds  surety  although  not  approved  as  required  by  statute 12 

good  at  common  law  against  surety  if  not  repugnant  to  law. ...  12,  18 

surety  on,  of  officer  liable,  when '  444 

VOLUNTARY  CONVEYANCE— 

in  determining  question  of,  implied  promise  of  principal  to  in- 
demnify surety  arises  when  surety  becomes  bound 177 

VOLUNTARY  PAYMENT— 

payment  by  surety  is  never  a,  so  long  as  tte  debt  can  in  any 

manner  be  enforced  against  principal 196 

payment  by  surety  without  compulsion  is  not  a,  which  deprives 

him  of  right  to  contribution 257 

VOTE— 

Df  corporation  entered  on  its  books  sufficient  memorandum  to 
satisfy  the  statute  of  frauds 66 

WAGER— 

guaranty  that  stock  shall  pay  certain  dividends  is  not  a 110 

surety  who  pays  note  given  to  secure  illegal,  cannot  recover  in- 
demnity    185 

WAIVER— 

by  guarantor  of  due  diligence  on  the  part  of  the  creditor  may  be 
by  parol 84 


INDEX.  741 

Section 
WAIVER— Continued. 

of  notice  necessaiy  to  charge  guarantor 175 

by  surety  of  right  to  subrogation 261 

of  written  statutory  notice  to  sue 508 

WIFE— see  MARRIED  WOMAN. 

■who  joins  her  husband  in  mortgage  of  his  land  for  his  debt  not 

his  surety 22 

who  mortgages  or  pledges  her  property  for  debt  of  her  husband 

is  to  that  extent  his  surety 22 

if,  mortgages  her  land  for  husband's  debt  land  remains  liable 

after  her  death 113 


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